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Complete Right to Jury Trial At Risk in Some States?

In the last year there has been a fight at the federal level over possible nationwide “tort reform.” This took the form of a bill introduced in the U.S. House of Representatives by a Republican member known as H.R. 5. Fortunately, that measure (and similar ones) have not yet advanced through the legislative process in Congress.

Of course, that does not mean that patient rights are safe. That is because most tort reform proposals are state initiatives anyway. All laws and constitutional amendments that have passed seeking to insulate certain interests from legal accountability following things like birth injuries and other forms of medical malpractice have arisen in individual states. That is true here in Illinois. At various points in the past few decades, a few laws have passed which seek to curtail the civil justice rights of Illinois residents in various ways. We have been fortunate, however, in that our Illinois Supreme Court has struck down the most egregious affronts to the rights of residents to use the civil justice system free of arbitrary and unfair legislative intrusion.

Eliminate the Jury Altogether
Other state have not been so lucky, however. For example, as reported in a recent Pop Tort post from the Center for Justice & Democracy, a few states are actually proposing to eliminate the right to a jury trial entirely in medical malpractice cases. This latest iteration is a completely unacceptable overreach that should draw the ire of all reasonable community members, regardless of party affiliation or general political philosophy.

According to the report, both Georgia and Florida have bills introduced in the statehouse which get rid of juries in medical malpractice cases. Insead, a government-run agency would be created which would decide all disagreements. This new agency would be filled with political appointees from the business and medical medical community. These government officials would then write “compensation schedules.” These “schedules” are nothing more than a kinder way to refer to placing dollar amount of specific kinds of injuries. In other words, these schedules would be a cap on every kind of injury, regardless of the specifics of the case or the needs of the patient. For example, there would be a set dollar amount for the death of a child, a different amount for the loss of brain function, another for losing a limb, etc.

It takes little examination to realize how truly awful this option is for those from all sides of the political spectrum. This proposal represents a tremendous government overreach, creating a new group with tremendous power over citizens. If conservatives truly do care about minimizing the role of government, this type of proposal should be rejected on sight. It is nothing more than an incredible power grab by big insurance and medical interests at the expense of everyone else.

To emphasize the incredibly harmful and misguided approach to this new proposal, the Center for Justice and Democracy issued a longer report examining the consequences. The full report can be found here.

In summarizing the situation, the CJ&D executive director noted, “This proposal is nothing short of a government takeover of the medical malpractice system, instituting a rigid, dictatorial system of compensation schedules and liability standards for doctors, and replacing what is now a free-market approach to holding health care providers accountable for their negligence with government regulation.”

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