|
By
Michael J. Foley
Special To The Citizens' Voice
The Seventh Amendment right to a fair and impartial jury of
one's peers has been described as "the essence of
justice." But now the medical establishment wants to tip the
scales of justice by replacing our constitutionally guaranteed
right to trial by jury with "specialty courts" where
malpractice cases would be decided by "medical experts"
and ordinary citizens would be excluded from the decision-making
process.
Trial by jury was constitutionally required
by the Founding Fathers primarily as a means of avoiding the
corruption of justice by having elites decide factual disputes at
trial. Among the grievances with British rule enumerated in the
Declaration of Independence was that King George was
"depriving us in many cases of the benefits of trial by
jury."
In 1979, Chief Justice William Rehnquist said
that "the founders of our nation considered the right of
trial by jury in civil cases an important bulwark against tyranny
and corruption, a safeguard too precious to be left to the whim of
the sovereign. Juries represent the layman's common sense and this
keeps the administration of the law in accord with the wishes and
feelings of the community."
Having doctors sit in judgment of other
doctors on medical "specialty courts" amounts to having
the "fox watch the henhouse." If corporate CEOs were
allowed to sit in judgment of the Enron fraud case, Americans
would be justifiably outraged at the conflict.
Last year, 1,500 Pennsylvanians died from
preventable hospital-acquired infections, according to recent
report. Every year, the
Institute
of
Medicine
estimates as many as 98,000 patients die in
U.S.
hospitals due to preventable medical mistakes - a figure that
would make medical errors one of the leading causes of death in
America
.
Medical errors in hospitals are now addressed
internally through secret peer-review panels composed of
physicians and hospital officials - an oversight mechanism that is
widely acknowledged by patient safety advocates as a failure. The
Pennsylvania Medical Board, which takes disciplinary action
against physicians by suspending or revoking their licenses, is
ranked one of the worst in the nation.
The reason why peer-review panels and medical
licensing boards have failed to ensure patient safety is simple:
Physicians are unwilling to police their own. In April 2003, an
executive of the Pennsylvania Medical Society admitted that the
peer-review process had been doomed by local politics and said the
medical society supports a statewide peer-review system to address
dangerous patient care.
It would be a travesty to undermine our civil
justice system based on the faulty premise that lay juries are not
competent enough to decide facts - after presentation of both
sides at trial - and that superior results would be achieved by
having panels of doctors decide a patient's right to compensation.
True, there are specialty courts for bankruptcy, tax and other
types of cases. But those courts were created to deal with special
sets of laws, not special sets of facts. Whether a doctor injures
a person on the operating table or driving to the hospital, facts
are facts. And in
America
, the sole arbiter of facts is the jury.
The solution to the epidemic of medical
errors is not to let doctors preside over malpractice cases
against other doctors, adding yet another layer of politics and
secrecy to an already failed system. The answer is to let juries
of average people hear and decide malpractice cases.
The tort system, which has its roots in the
Magna Carta, has served our country well for centuries, and
continues to be the best safeguard of the rights of average
citizens. On the other hand, secrecy and letting the "fox
watch the henhouse" has undermined public safety by covering
up problems in order to avoid accountability. Why should this
latest physician-sponsored proposal be any different?
Michael J. Foley
is a
Scranton
malpractice attorney and secretary of the Pennsylvania Trial
Lawyers Association.
|
