A Constitutional Right to A Trial by Jury

     When Barack Obama, Illinois' favoriteson, made history and was elected president of the United States, there was no group prouder than the trial lawyers who vigorously supported him across the country. But the disappointment was deep in hearing his remarks during the 2011 State of the Union address where he appeared to put his own stamp of approval on a long-standing Republican priority to overhaul state medical malpractice laws and uttered the phrase, "defensive medicine."
    "I'm willing to look at other ideas to bring down costs, including one that Republicans suggested last year — medical malpractice reform to rein in frivolous lawsuits," he said to applause. It is troubling if Obama thinks that so-called frivolous lawsuits even exist in the medical malpractice arena, given the cost to bring them and to see them to the end.
    In fact, Obama's budget calls for $250 million in Justice Department grants to help states rewrite their malpractice laws. The list of purported innovative approaches to improve the quality of health care and reduce medical costs and liability includes the concept of health courts.
    Specially trained judges, not juries, have been proposed to decide malpractice cases and, if liability is found, to set compensation based on a set schedule. It is without doubt that such courts take away the constitutional right to a trial by jury from those injured by medical malpractice. Proponents of such courts would forsake constitutionality for the price of supposed predictability. All this despite the fact that it is well-known that altering the tort system has little to do with malpractice insurance rates for doctors.
    Obama rides this issue on the back of his historic Affordable Care Act signed March 23, 2010. The U.S. Senate Judiciary Committee, led by Sen. Dick Durbin, D-Ill., had hearings on its constitutionality in February. There, many of the nation's top lawyers and academics attested to the constitutionality of the law, which was passed in times in which 40 million people don't have health-care insurance and whose $40 billion in annual health-care costs are being shifted to others.
    U.S. District Judge Roger Vinson, of the Northern District of Florida, held the law unconstitutional under the commerce clause. He held that the case centered on the constitutionality of the individual mandate requiring every American, starting in 2014, to buy federally approved health insurance or pay a monetary fine. The court concluded that under the federal government's logic, it would be hard "to posit any activity by an individual that Congress is without power to regulate." Florida ex rel. Bondi v. U.S. Department of Health and Human Services, et al., No. 3:10-cv-91-RV/EMT, 2011 WL 723117 (N.D. Fla 2011), quoting, U.S. v. Lopez , 514 U.S. 549, 564-65 (1995).

    The case is headed to the U.S. Supreme Court. At the same time that this debate continues to rage both on Capitol Hill and in the courts, ideologues across the country have redoubled their legislative efforts to change laws that protect injured consumers. For example, a hearing on H.R. 5 occurred in the House Judiciary Committee where it faced a rocky road in the face of proponents of states' rights. The committee approved the bill on Feb. 16.
    H.R. 5, misnamed as the Help Efficient, Accessible, Low-Cost, Timely Healthcare Act of 2011, is the most vicious tort "reform" bill ever introduced in the House. It goes beyond medical malpractice and includes restrictions on the liability of nursing homes, insurance companies and pharmaceutical companies.
    H.R. 5 reduces the statue of limitations to one year from the date of injury, imposes an arbitrary $250,000 cap on noneconomic damages, eliminates joint liability for economic and noneconomic damages, imposes severe restrictions on punitive damages and provides immunity from punitive damages in medical product liability cases. These are just a few of its onerous provisions.
    At this writing, the bill is expected to go before the U.S. House Energy and Commerce Committee in April. Democrats have introduced more than 20 amendments, including one offered by Rep. Steve Cohen, D-Tenn., that would exempt from the bill wrong-site surgery and foreign objects left in the body. Other amendments include removing noneconomic damage caps for cases involving children, striking the elimination of joint liability and striking the prohibition on punitive damages for FDA-approved drugs and devices.
    All of the onerous parts of the bill are meant to sabotage a person's right to pursue a valid medical malpractice case, instead of trying to get to the truth when negligence is alleged. The bill basically pre-empts state laws in the area of medical malpractice.
    Support of this bill, though, is vexing for many Republicans. While opposing Obama's health-care bill on the basis that it violates the commerce clause, these same Republicans are forced to adopt the opposite side of this argument to support H.R. 5, which federalizes medical malpractice laws. It is important to stay focused and not allow the courts or lawmakers to use those injured by medical malpractice as pawns in the health-care debate. Their day in court is too important to be overridden by a deprivation of their constitutional right to a trial by jury.