A Final Look at Tort Reform Until the Next Battle

The health care reform bill that President Obama has now signed into law did not contain tort reform provisions such as caps on damages in medical malpractice cases. Unfortunately, this does not mean the push for tort reform legislation is over. The battlefield now will simply shift back to the State level while we await the mid-term Congressional elections.

Interestingly, the pendulum may be swinging back in favor of victim’s rights on the State level. In February, the Illinois Supreme Court held that the Illinois statute imposing caps on damages in medical malpractice cases was unconstitutional (http://www.state.il.us/court/OPINIONS/SupremeCourt/2010/February/105741.pdf). Then, in March, the Georgia Supreme Court reached the same conclusion about the Georgia medical malpractice damage cap statute (http://www.gasupreme.us/sc-op/pdf/s09a1432.pdf).

“Tort reform” statutes are continuing to be closely scrutinized by Courts because they run counter to our core beliefs of what’s fair and what works. Consider these examples:
1. People are accountable for their own conduct and, if their wrongful conduct causes harm, they should be responsible for the harm they have caused.
2. People should pay what they owe.
3. Money is a motivator that should be used to encourage good conduct and deter wrongful conduct, not the reverse.
4. The ability to enjoy life is important.
5. All human beings are entitled to be treated with dignity.
6. There is no privileged class in America
7. Our fellow citizens from our local community are better suit to make decisions on what’s fair for our local community than our politicians in Washington, D.C. or our State capitals.

Most of these fundamental beliefs are reflected in our Constitution. Statutory caps on damages in medical malpractice cases are inconsistent with each one of these beliefs.

Caps substitute an artificial amount of compensation for the fair compensation that a jury has determined a wrongdoer owes for the harms his wrongful conduct has caused. By so doing, damage caps relieve wrongdoers of accountability for at least part of the harm their wrongful conduct has caused another person. When the actual harm is horrendous, as is often true in medical malpractice cases, and the maximum damage cap is $250,000 , it is the major part of the harm wrongdoers have caused for which they are no longer responsible.

Caps on damages in medical malpractice cases dilute the motivational ability of money to improve conduct. Consider for example, a case where poor medical care in a hospital has resulted in a patient suffering $2,000,000 of harm. What will motivate the hospital more to seek ways to prevent the recurrence of that same poor medical care in the future-----being required to compensate the patient $2,000,000 for his or her entire loss, or being required to only pay $250,000?

Caps denigrate the value of being able to enjoy life. It is the determination of the amount needed to fairly compensation an injured person for his or her loss of the ability to pursue happiness and enjoy life that the statutory caps on damages undercuts and reduces to a artificial, predetermined, fixed amount.

Caps are a slap in the face to a segment of our society----the victims of medical malpractice. Having gone through a lengthy and costly court battle to right a wrong and receive compensation for the harms they have suffered, the victims of medical malpractice are told at the end of the day that their harms and losses don’t count and what they have gone through doesn’t matter. The message being sent by reducing their fair compensation to some artificial figure is nothing short of “So what! You are a loser and your loss is not important!”

Caps on damages in medical malpractice cases establish a privileged class in our country where there are not suppose to be any Kings or Queens. With caps, the members of the health care profession become special people with special entitlements that no one else has----the right to be relieved of paying what they owe; the right to be unaccountable for the harm their wrongful conduct has caused.

Finally, our Constitution guarantees us the right to a jury trial in civil and criminal cases because our Founding Fathers believed it to be the fairest way for decisions affecting our lives to be made and because they also believed it was needed to protects us from the power of our elected politicians . Yet, caps achieve the exact opposite result. Caps substitute the arbitrary decision of powerful politicians as to what’s fair for the judgment of a jury of peers drawn from our local community which has considered all the relevant evidence.

Caps aren’t fair and they have no legitimate place in our country.