ABA urges Congress to maintain right to jury trial

During a June 22 hearing of the Senate Committee on Health, Education, Labor and Pensions, Cheryl Niro, incoming member of the American Bar Association Standing Committee on Medical Professional Liability and past president of the Illinois State Bar Association, spoke to the issue of "Medical Liability: New Ideas for Making the System Work Better for Patients."

Speaking on behalf of the ABA, Niro said, "The ABA firmly supports the integrity of the jury system, the independence of

Cheryl Niro

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."

A full copy of Niro's testimony is available online here [PDF].

Back to top