Philip Howard, the founder of the pro-tort reform group Common Good, had an op-ed in the Wall Street Journal this weekend calling for the creation of his latest project, health courts. Howard and his supporters claim that by eliminating juries from medical malpractice cases and replacing them with "experts" and special judges, the health care system would be fairer and patients safer. Howard argues that such a system would resemble workers compensation. Anyone who knows workers comp these days should find that a chilling possibility.
Becky Foster and her family found out first hand just how fair workers comp is, and how "safe" it makes the American workplace. Two years ago, Foster's step-son Jeremy Foster, 19, was killed in an Arkansas sawmill accident. His sweatshirt got tangled up in a wood chipping machine that had been inexplicably altered by the company, making it impossible for him to free himself. Foster was working alone at night. When his co-workers later found him hanging from a ladder, he had been asphyxiated.
Even though Foster was a temp at the plant, Arkansas workers comp laws do not allow his family to sue the mill for negligence. Lawyers have told his family that there's also no point in pursuing a workers comp claim, either, because Foster didn't have any dependents. As a result, the sawmill's only penalty for killing the young man came from the federal Occupational Safety and Health Administration (OSHA), which found numerous safety violations at the mill, but only fined the company $4,500 (and later reduced that piddly number to $2,250). (You can read more about the Fosters' story here.) As Becky Foster has pointed out, $2K is hardly enough to persuade a company to make a safer workplace.
Such meager punishments doled out by "experts" seem equally unlikely to spur major safety initiatives in the health care system. Besides, as Howard so deftly argues, the threat of jury awards has already made patients too safe, by driving an epidemic of defensive medicine, where we all get more health care than we really need because doctors are so afraid of being sued! Replace the juries with a health care version of OSHA/workers comp and things really promise to go downhill...
I don't understand why his parents can't sue the sawmill for negligence in his death. What does worker's compensation have to do with this. If the sawmill's modification to the chipper made it dangerous and caused Foster's death, there should be nothing preventing such a suit. If they can't sue at the State level they should be able to sue at the Federal.
Posted by: Jim Collins | January 11, 2007 at 12:48 PM
Jim, I know it is hard to imagine that we cannot access our courts. According to many lawyers, "As part of Arkansas adopting workers compensation laws the employers were given immunity from suit." Arkansas has an 'exclusive remedy' clause.
Posted by: Becky | January 11, 2007 at 06:15 PM