Malpractice fix? We should never give up trial right
by James Sadd
November 22, 2012 11:00 PM | 2106 views | 3 3 comments | 14 14 recommendations | email to a friend | print
Health care executive Jeff English touts a proposal in a MDJ guest column on Wednesday to strip away the constitutional right to trial by jury in cases where medical malpractice injures or kills patients. It is well known that hospital medical malpractice in America causes about 98,000 avoidable deaths per year. That is just deaths in hospitals. It does not include loss of limbs, infections and other injuries that occur in hospitals or elsewhere in the medical community.

English trots out the false phenomenon of “defensive medicine” as the premise for his proposal by claiming doctors “almost always practice defensive medicine and order unnecessary tests and procedures.”

This is offensive to the thousands of competent Georgia doctors who fight mightily to do what is best for their patients on a daily basis. Every doctor will tell you that they have to fight to get their patients’ health insurance companies to authorize them to conduct even absolutely necessary medical tests and medical procedures for their patients. Ordering extra and unnecessary tests and procedures simply isn’t allowed by cost-conscious insurance companies. And, doing so would be fraud.

We don’t believe Georgia doctors routinely commit insurance fraud, Medicare fraud or Medicaid fraud. C’mon. How is it possible that doctors are supposedly able to conduct billions of dollars’ worth of unnecessary tests and perform unnecessary procedures, as English claims?

If there is some “defensive medicine” going on, it is no more unnecessary than is defensive driving. It is done to protect people. Doctors order tests because they do not want to risk their patients’ health. They order tests because they want additional confirmation of a diagnosis before ordering costly, potentially dangerous treatment. They also may want to satisfy their patients’ desire for more certainty.

I’m not the only one questioning these fabricated claims. The U.S. Government Accountability Office has questioned the claim of defensive medicine, saying, “The overall prevalence and costs of (defensive medicine) have not been reliably measured.” That is because special interest groups like English’s rely on questionable, anonymous (and therefore unverifiable) surveys of doctors with low response rates to bolster their self-serving supposition.

English’s idea is to create a new government-run, bureaucratic agency where doctors alone would sit in judgment over the conduct of their fellow physicians. Of course, this would do nothing to fairly address or reduce the 98,000 avoidable deaths caused by malpractice every year. It would not solve the non-existent, ginned-up “defensive medicine” problem.

This radically unconstitutional idea would, however, install a politically-appointed, doctor-controlled system to replace our current jury system that appropriately and fairly relies on the common sense and impartial judgment of our fellow citizens.

We don’t have a system where truck drivers alone sit in judgment over the errors of their fellow truck drivers. And, no one would stand for a system that allowed only lawyers to sit in judgment over the malpractice of their fellow attorneys.

Why would we, as citizens, ever give up our constitutional right to a trial by an impartial jury of our fellow citizens who have no agenda but to find the truth and deliver justice for all? There is a reason the right to a trial by jury was included in the United States and Georgia Constitutions — and English’s proposal is that very reason.

James (Jay) Sadd is president of the Georgia Trial Lawyers Association and a partner of the law firm Slappey & Sadd, LLC, in Atlanta. Sadd holds a juris doctorate degree from Mercer University and represents families, workers, and consumers who have been critically injured or lost a loved one because of the negligence or willful conduct of others. He was lead counsel for 37 injured victims of the 1996 Centennial Olympic Park bombing.

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Valerie Kockelman
November 23, 2012
I've been thru a jury trial because of a med-mal case involving the death of my husband. My advice: Go with a judgment by the judge after trial, because the judge will be smarter than a jury that wishes the trial would end and, besides, they "couldn't understand everything." Forget the jury! What you want is a smart, honest attorney and a really good Expert Witness. Then hope the Judge has been through a lot of these med-mal hearings & can render a good judgment. (Incidentally, after all my experience, I don't trust lawyers, and I don't like psychiatrists.) I lost at trial. My book is on its way. What a horrible experience!
Marietta citizen
November 23, 2012
What was not in the article is that Mr. Saad will also be happy to take 40 percent plus expenses for any award or settlement. But then you have to read the fine print of the Attorney contract.
Bill for Justice
November 24, 2012
40% of nothing equals zero. Stop committing the malpractice and there won't be anything to sue about and no attorney fee to be earned. But, if you commit malpractice, in this country, under our Constitution, you should be held accountable. The right to trial by jury is the only thing that gives us a shot at that happening. God Bless America, a nation where the rule of law prevails.
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