“Tort Reform” Hurts People We All Want to Help – Not the People We Don’t

I recently read a statement by a physician who was the tragic victim of medical malpractice.  He was enraged by the fact that a very preventable form a cancer had not been detected by a physician he was treating with.  The doctor was furious that he is going to die unnecessarily because another doctor made such a mistake.  The negligent doctor who missed his cancer had a history of committing malpractice, but had been allowed to continue practicing medicine.  Worse yet, this man has come to understand that  Indiana’s arbitrary cap on medical malpractice damages is going to leave his family with an uncertain future, especially his minor children.

We hear about cases where juries award huge sums of money to someone who was injured and we don’t always stop to think that the jury must have had some reason to make its finding.  We don’t always realize that the money award has to go to pay medical bills and lost wages and court costs and whatever other expenses have been incurred as a result of the injury.  Instead of trusting the jury in civil cases, we listen to law makers who want to enact limitations on what a jury can award in the form of monetary damages.

A true, tragic story of the impact of tort reform happened just recently when a judge in California was forced to divide up the damages that were capped by federal law in the Amtrak passenger train wreck that happened in Chatsworth, California on September 12, 2008.: In 1997, Congress passed a law capping Amtrak’s liability in any one crash at $200 million.  This sounds like an incredible amount of money, until you read the facts of this particular case — 24 people died and over 100 were injured, some of them horrifically, when the Amtrak conductor was texting on his phone, switched tracks, and collided with an oncoming freight train.  The judge was forced to make choices about which catastrophic injury was greater than the next catastrophic injury, and why one horribly injured person should receive a little more than the next – all the while leaving nobody with full compensation.  Likewise, the judge had to choose which child who just lost a parent deserved more than the next child who lost a parent, leaving neither child’s future appropriately secured.  The reason these horrific decisions had to be made was because the Judge could not award the full value of all the claims.  Instead, he was forced to fit the all of the claims inside the arbitrarily legislated cap on damages.

You see, when arbitrary caps are implemented in civil cases, it is the valid claims that are impacted, not the frivolous ones.  There are already rules in place for frivolous lawsuits to be dismissed.  In fact, that’s part of a trial court judge’s job.  Therefore, Indiana’s arbitrary cap on malpractice cases will not prevent a single frivolous lawsuit.  But, it will prevent the doctor in Indiana I mentioned earlier- who will die due to malpractice- from leaving behind enough money to care for his family, just as the victims on the Amtrak train won’t receive the full value of their losses either (It’s worth noting that the damage cap in Indiana has not been raised since 1998 – nearly13 years.)

Tort reformers want to limit the access of the individuals to the courts.  They start with the assumption that most lawsuits are frivolous and that most people are out to turn their injuries into lottery tickets.  They don’t trust the law to sort out the legitimately injured from the malingerers of the world.  And because they don’t trust the courts, they don’t want people to have access to the courts.  They also never think they will be the person who needs justice as a result of someone else’s negligence.

In general, we all just want to know that the products they’re using aren’t going to hurt us.  No one wants contaminated food items, improperly constructed cribs, or cars that don’t stop.  As a society, we rely on companies to sell products that are safe for use and consumption.  If there is an error or problem, we expect those companies to admit the problem and take every step to correct it and to fix whatever damage has already been done.  And, if the harm is bad enough and/or pervasive enough, our third branch of government, the Judiciary – the branch that is supposed to be free of political campaign money’s influence, is supposed to be there to allow a jury of our peers to decide if our claim is valid and, if so, what harm was caused by the negligent behavior.  Unfortunately, it is exactly this Constitutional premise, the right to trial by jury in a civil case, that “Tort Reformers” want to take away.

There is a great documentary film on HBO right now called “Hot Coffee.”  The movie starts with the truth about the now infamous McDonald’s hot coffee case, and how the plaintiff actually received horrible injuries due to McDonald’s clear malfeasance.  Yet, her story was spun completely out of context by a planned media effort by “Tort Reformers” in order to get the general public to believe that juries are out of control and frivolous lawsuits are a big problem.  The same tort reformers also had a strategic plan to pass caps on damages through state legislators, and even change state constitutions when the legislation was struck down as unconstitutional.  At one point in the documentary the story was told of a man from Waco, Texas who admitted to voting for the constitutional amendment to cap “frivolous” lawsuits, only to become the victim of medical malpractice himself.  He told the lawyer, “I thought we only capped the frivolous ones.”

We trust juries with the duty and responsibility to decide guilt or innocence in criminal cases.  Jurors in a capital murder trial have the power of life and death in their hands.  It is only in civil litigation where we no longer trust the decision of a jury.  Instead, we have allowed insurance companies and other large corporations to convince us that we cannot trust a jury.  People forget that the right to a jury trial was, literally, mentioned in the Declaration of Independence as a reason why American was breaking away from Great Britain.  The right to trial by jury in a civil case is the basis of the 7th Amendment to our Constitution.

Not every company has the integrity to own up to its errors or omissions.  It is because of these companies that the courts must remain available to everyone.  It doesn’t make sense to have the law bent to the whim of the powerful at the expense of the individual.   If only corporations have justice, none of us do.

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