What about a jury of unbiased medical experts instead of peers?

Note: This column is the second in a two part series about health care reform.

Cases like… Note: This column is the second in a two part series about health care reform.

Cases like that of Samuel Desiderio, who was awarded nearly $50 million in a medical malpractice case, have provided those who support a malpractice cap with ammunition, not so much because of the amount awarded, but because the jury-approved amount was significantly less than the eventual amount of the award.

In the concurring opinion of the New York Court of Appeals case that upheld the amount awarded in that case, Justice J. Rosenblatt noted, “I write separately to point out that although the jury determined that $50 million is the apt figure after inflation, article 50-A comes into play and further enlarges the judgment – nearly threefold – to approximately $140 million.”

Rosenblatt went on to say that he did not necessarily think the jury knew the award would end up at that amount, nor did he think that the New York Legislature intended for such a reward to be the result of article 50-A.

Article 50-A, it should be noted, is legislation that was introduced in New York to reduce insurance costs. However, because the awards are prorated, with 4 percent added each year, the statute can, as it did in this case, lead to obligations much higher than the actual jury award.

In any case, it becomes clear that there is no need for the kind of reform proposed by the Republicans. Not, at least, when the Appeals Court of New York says that the letter of the law demands an award nearly three times that awarded by a jury.

Since the Desiderio case, the New York State Legislature has revised 50-A, which now stipulates that more of the award will be paid in an up-front lump sum, and less will be prorated over a shorter period of years. Hopefully the legislation will be successful and will provide an example for other states to follow.

Doctors and politicians have been considering a number of options, including a single-payer system, in which every U.S. citizen would have health coverage paid by the U.S. government, which, to cover the costs, would probably further embrace the multi-payer system, already in place, called “taxes.” This plan seems to have consumers paying the same money, but to someone else, and would likely limit the consumers’ power to choose their care.

Rather than having all Americans pay more taxes, some politicians think having doctors pay less would solve the problem. That sounds suspiciously like trickle-down economics, once more.

Bush wants to solve the problem at the expense of providing just compensation to those who need it; that is not acceptable. But I’m sure he’d agree that the ideal situation would be a method for distinguishing which malpractice claims are valid and which are frivolous.

Plaintiffs considering malpractice lawsuits understandably think somebody should be blamed, but have no clue whether the medical procedure was carried out improperly. Doctors will assure them that the best possible effort was made, and lawyers will guarantee a minimum of $500,000 in damages. Such lawsuits, even when unsuccessful, greatly increase the expense of health care, and, while plaintiffs should be entitled to pursue damages, it would be beneficial to avoid these lawsuits as much as possible.

If an unbiased, knowledgeable third party could investigate cases of alleged malpractice and inform these consumers as to whether their lawsuit was viable or frivolous, such costly lawsuits might be reduced.

Even beyond this, in our modern era of specialization, the idea of a trial by a jury of your peers might best be replaced by the idea of a trial by a jury of people who know a damn sight more than you. In simpler terms, medical cases could be judged by juries of medical experts. Not doctors, of course – one would be hard-pressed to find a doctor who is unbiased on the issue of medical malpractice. Rather, the jury would consist of people trained in the same way as doctors, and who are as knowledgeable concerning proper procedure.

Granted, it might be deemed unconstitutional, but then, the U.S. Constitution was written more than two hundred years ago when, if you needed an operation, you were probably going to die, so malpractice was not a real factor. The Constitution was written in a time when “doctors” knew little more than their patients, and thought it was a good idea to slash their patients’ wrists in order to bleed the illness out of them.

It may be time for an update.

If Marty Flaherty were deathly ill, he’d pull the plug and pass the savings on to you. How’s that for health care reform? E-mail him at xgrp@hotmail.com.