Cyrus Dugger

Testimony of Linda Andros , Legislative Counsel, Public Citizen: Medical Malpractice

From Public Citizen:

TESTIMONY OF LINDA ANDROS, LEGISLATIVE COUNSEL, PUBLIC CITIZEN, BEFORE THE HOUSE JUDICIARY COMMITTEE ON HOUSE BILL 48: THE MEDICAL MALPRACTICE ADMINISTRATIVE REVIEW BOARD

Thank you to the Chairman and Members of the Committee for holding this hearing.

Public Citizen is a non-partisan, non-profit organization with 100,000 thousand members across the nation and over 2,800 members residing in Maryland. Public Citizen was founded in 1971 to advocate for the public interest before state and federal government branches. Public Citizen is committed to preserving a strong civil justice system so that individuals and their families can seek meaningful redress when injured by the negligent conduct of others. As Legislative Counsel at Public Citizen’s Congress Watch, I am here today to inform the Members of the Committee about Public Citizen’s serious concerns with House Bill 48.

The people of Maryland believe, as do all Americans, that people injured by the negligence of others deserve their day in court. That steadfast belief is grounded in our Constitution, which makes no distinction when it comes to patients injured by medical negligence. The Founding Fathers believed strongly that an impartial jury of one’s peers was the best safeguard for liberty and is the bulwark of a democracy. Indeed, they believed so fiercely in this fundamental right that it was guaranteed to us in the Seventh Amendment of the U.S. Constitution. Chief Justice William Rehnquist stated it eloquently: “the right of trial by jury in civil cases at common law is fundamental to our history and jurisprudence.” [i] Similarly, Articles 5 and 23 of Maryland’s State Constitution inviolably preserve the right for civil actions recognized at common law (as of June 1st, 1887) where the amount in controversy exceeds $10,000.

Regrettably, some appear to have lost sight of the primacy of this constitutional guarantee in proposing House Bill No. 48, which gravely undermines it. In plain and simple terms, the bill would unfairly impose an undue burden on injured patients who seek to exercise the fundamental right to a trial by jury.

There are four critical problems with the bill. First, the bill sets up an administrative process that injured patients would be compelled to go through once a suit is filed and before he or she could proceed to a jury trial. That administrative process alone would add substantial costs for the patient. For example, under the bill, parties must share equally in the cost of the hearing and the cost of the review process. These costs would be in addition to the costs the patient already has incurred to obtain the certificate of a qualified expert, which is another legal necessity for filing suit in Maryland for medical malpractice.

Second, even if the patient chooses to proceed to a jury trial after the administrative process is concluded, the bill biases that jury proceeding. Under the bill, a decision by the administrative board is admissible at the trial and, if unanimous, must be accorded a presumption of correctness. The burden of proof is shifted to the patient to show why that presumption is incorrect. Yet, as I will briefly describe, that process is hardly a model of impartial decision-making.

Stated differently, the patient would have to prove by a preponderance of the evidence that: 1) he or she was injured, 2) the defendant medical provider was the proximate cause of that injury, and 3) the defendant failed to follow the standard of care, and in addition, the patient would have to prove that the panel’s decision was incorrect. Rebuttable presumptions (a presumption of correctness) are used very sparingly in the law precisely because shifting the burden of proof may quite readily prevent an otherwise legitimate claim from prevailing. They also impose costs in addition to those that would be incurred in a normal case in the course of presenting a plaintiff’s claim to a jury.

Third, and perhaps the most patently offensive to the Constitution, is the requirement that the “loser” pays. Under this provision, a patient could be held responsible for all costs and attorney’s fees if he or she did not prevail at trial and before the board. This single mandate provides the greatest disincentive for exercising the right to a jury trial and improperly negates it.

A right means little when so burdened. Most people – and the poorest and neediest among us – would not have the ability to assume this additional risk because they would not have the resources to cover the costs and attorneys’ fees of these very complicated trials, which typically require expert testimony. On the other hand, medical providers and their insurers could take that risk, which would be a much lower risk thanks to the bill’s bias in their favor. The result, which we can be confident was the very purpose of the provision, is to dissuade patients from seeking justice.

Fourth, the bill is deeply flawed because it treats patients injured by the negligent conduct of medical providers differently from individuals injured by any other kind of negligent conduct. Certainly, no other profession is shielded from accountability in this manner. Under our system of government, we all can be held accountable through the civil trial process for the consequences of our negligent actions. There is absolutely no reason that people who are injured by medical negligence should be discriminated against or burdened unduly in the amount of time and resources they must devote to pursuing a Constitutional guarantee. In treating injured patients differently, the bill is contrary to our very notion of fundamental fairness and of equal protection for all under the law.

Lastly, the administrative process described in the bill is hardly a model of impartiality. An administrative judge would appoint a panel (or board) made up of health care providers, which to my understanding, would be comprised of practitioners in the specific practice area at issue in the particular case. This creates an inherent bias, as fellow practitioners and compatriots would be loathe to stand in judgment over one of their own. One need only look at how lax state medical boards are in disciplining physicians to grasp the inherent unfairness in this rigged process.

In fact, I would commend a recent report by Public Citizen (submitted with my written remarks), which shows that only about five percent of doctors commit over 50 percent of the negligence that claims are paid on. See “The Great Medical Malpractice Hoax: NPBD Data Continue to Show Medical Liability system Produces Rational Outcomes.” (Jan. 2007). It’s obvious that the process laid out in the bill was written by and for medical providers and their insurers. Our report also shows that medical malpractice cases are rational in their outcomes and that there is no “epidemic” of unduly large payouts by medical malpractice insurance providers.

A further analysis of data regarding access to ob/gyns that we published just last week is also attached to my testimony, and shows that the number of counties nationwide with an ob/gyn is actually increasing.

In conclusion, I would ask you to contemplate this question – why have the proponents of this bill gone to such great lengths to emasculate the jury trial? The answer is found in the very reason why that right is enshrined in the U.S. Constitution and why the drafters of the Maryland Constitution followed suit – to provide individuals with the best possible defense against harm caused by others, particularly those powerful interests which might otherwise be able to unduly influence the political process and rig the system in their favor. Public Citizen urges the Members of the Committee to make sure this does not happen in Maryland. Please uphold our Constitutional guarantees by reporting this bill unfavorably.

[i] Parklane Hoisery Co., Inc. v. Shore, 439 U.S. 322, 338 (1979) (Rehnquist dissenting).

Posted at 8:59 AM, Feb 01, 2007 in Permalink | Comments (0) | TrackBack (0)