ABA Endorses Voluntary Mediation in Medical Malpractice; Opposes Current “Health Courts” Proposals

WASHINGTON, D.C., June 23, 2006 – “For decades the ABA has supported the use of, and experimentation with, voluntary alternative dispute resolution techniques as welcome components of the justice system in the United States, provided the disputant’s constitutional and other legal rights and remedies are protected,” said Cheryl Niro, incoming member of the _ Standing Committee on Medical Professional Liability and past president of the Illinois State Bar Association, yesterday during a hearing of the Senate Committee on Health, Education, Labor and Pensions.

While the ABA is strongly committed to voluntary negotiation, mediation and settlement agreements, and recognizes the use of voluntary arbitration as an important option for resolving disputes when the agreement to arbitrate is entered into only on a voluntary basis after a dispute has arisen and only if the disputant has full knowledge of the consequences of entering into such an agreement, the association is opposed to current proposals whereby all disputes are shifted to an administrative agency that would oversee medical malpractice cases that would be heard by persons possessing experience in the health care field rather than judges and juries.

Speaking on behalf of the ABA, Niro stated, “The ABA firmly supports the integrity of the jury system, the independence of the judiciary and the right of consumers to receive full compensation for their injuries, without any arbitrary caps on damages.  It is for these reasons that the ABA opposes the creation of any ‘health court’ system that undermines these values by requiring injured patients to utilize ‘health courts’ rather than utilizing regular state courts in order to be compensated for medical negligence.”

Among the problems Niro identified was that the “health court” proposals would require that injured patients be compensated according to a schedule of awards.  “Would it be fair,” she asked, “to award a pre-determined award for negligence that results in a paralyzed hand for a surgeon, or the loss of vision for an artist?”  The proposal would effectively put into place a cap on non-economic damages in injury claims, something that works to the disadvantage of women, children and the elderly and something that has been found to be unconstitutional in at least 13 states.

Too many questions remain as to the fundamental fairness of the proposal, Niro said, including whether a health care provider would force patients to sign agreements to use health courts before receiving treatment, and how patients would receive information about the kind of discovery permitted and other necessary information pertinent to their case.  She noted that the association supports the use of alternatives to litigation in medical malpractice cases “only when such alternatives are entered into on a voluntary basis, and only when they are entered into after a dispute has arisen.”
With more than 400,000 members, the _ is the largest voluntary professional membership organization in the world.  As the national voice of the legal profession, the ABA works to improve the administration of justice, promotes programs that assist lawyers and judges in their work, accredits law schools, provides continuing legal education, and works to build public understanding around the world of the importance of the rule of law in a democratic society.