ISBA past president Cheryl I. Niro of Chicago told a U.S. Senate committee last month that a proposal to create a health court system would undermine significant legal rights and remedies of disputants in the justice system.

Speaking on behalf of the American Bar Association Committee on Medical Professional Liability, Niro emphasized the ABA's support for “the integrity of the jury system ... and the right of consumers to receive full compensation for their injuries, without any arbitrary caps on damages.”

She said any system that requires injured patients to use health courts in medical negligence cases, rather than regular state courts, would run counter to those values and threaten the independence of the judiciary.

Niro also noted that the ABA for decades “has supported the use of, and experimentation with, voluntary alternative dispute resolution techniques as welcome components of the justice system.”

Her remarks were presented June 22 during a hearing of the Senate Committee on Health, Education, Labor and Pensions on the pending Fair and Reliable Medical Justice Act, introduced last year to reform the medical liability system.

Niro's opposition was joined by Duke University Law Prof. Neil Vidmar, who also criticized Duke's School of Medicine and Health System for showing interest in being one of six test sites for courts that are dedicated solely to medical cases.

“It bothers me that Duke has done that,” Vidmar said. “It is taking away the right of citizens without giving them the final appeal to an independent tribunal.”

Niro pointed out that among provisions of the health court proposal is a requirement that an injured patient be compensated according to a schedule of awards that caps non-economic damages.

“Would it be fair to award a predetermined award for negligence that results in a paralyzed hand for a surgeon, or the loss of vision for an artist?” she asked.

Such a proposal, which Niro said is disadvantageous to women, children and the elderly, has been ruled unconstitutional in at least 13 states. Too many questions remain about the fundamental fairness of the proposal, she added.

“Judges and juries would be replaced by fact-finders with training in science or medicine. No procedural protections have been defined,” Niro warned. “Injured patients would be forced to give up their rights to a jury trial.”