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Brett Emison
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Tort Reform and Constitutional Protections: Picking and Choosing

16 comments

Scales of Justice

Tort “reform” just keeps rearing its ugly head.  One of the troubling parts of tort “reform” – and there are many – is that such “reform” often comes from freedom-loving, constitution-loving politicians.

For example, in Missouri, the Senate Majority Leader, Ron Richard (R-Joplin), is pushing tort “reform” as part of next year’s legislative session.  According to the Missourinet.com report, Sen. Richard is pushing for additional tort “reform” measures – even after the legislature overrode gubernatorial vetoes of three tort “reform” measures last session – despite constitutionality concerns.

The confusing part is Sen. Richard’s professed support for the constitution.

I have always been an unwaivering advocate of our Second Amendment rights….  As I have stated previously, I took an oath to protect and uphold the U.S. and Missouri constitutions.

- Sen. Ron Richard

Sen. Richard has publicly supported a new bill supporting the 2nd Amendment of the Constitution, which acknowledges that the “General Assembly of the state of Missouri is firmly resolved to support and defend the United States Constitution against every aggression, either foreign or domestic, and is duty bound to oppose every infraction of those principles which constitute the basis of the Union of the States because only a faithful observance of those principles can secure the nation’s existence and the public happiness“.  (emphasis supplied).  The bill goes further and looks, specifically, to the courts to enforce and preserve the 2nd Amendment: “It shall be the duty of the courts and law enforcement… to protect these rights from the infringements defined [above].” (emphasis supplied).

I take Sen. Richard at his word and believe him when he says he supports the constitution.  But then why has Sen. Richard attacked the 7th Amendment right to jury trial, which is protected “inviolate” under the Missouri constitution?

I thought the legislature was “firmly resolved to support and defend the constitution”.  I thought the legislature was “duty bound to oppose every infraction“.

Image Source: ChangingWorld.com

Image Source: ChangingWorld.com

Support and protect the 2nd Amendment, but not the 7th?  So now we pick and choose which parts of the constitution we follow?  We pick and choose which parts of the constitution we support?  We pick and choose which parts of the constitution to defend and protect?

Are you for the constitution or are you not?

If you’re going to support the 2nd Amendment… or the 1st Amendment… or any other amendment, you must support the 7th Amendment right to jury trial.

The 7th Amendment to the U.S. Constitution provides that “In suits at common law… the right of trial by jury shall be preserved….”  The Missouri constitution goes further, providing that “the right to trial by jury as heretofore enjoyed shall remain inviolate….”  Mo. Const. Art. 1, sec. 22(a).

As Tea Party Nation founder, Judson Phillips and Tea Party advocate Andrew Cochran have said, “Real conservatives need to defend each and every God-given right enumerated in the Bill of Rights, and fight to maintain the limits on central power inherent in the Constitution.”

Too many Americans who claim to base their political decisions on the Constitution and Bill of Rights fold like a paper airplane when push comes to shove.  Too many of us pick our founding documents apart to choose which of the limits on power in the Constitution, or which of the ten amendments in the Bill of Rights, we back at any given moment.

– Andrew Cochran, “Capping Gun Rights & Jury Trials Equally Wrong

Cochran also wrote that “Liberals who love civil jury trials for their causes need to protect our right to bear arms, and conservatives need to protect the right to civil jury trials from crony capitalists who would abridge our right to a civil jury trial through ‘tort reform.'”

I’ve asked this question before: Do you have a right to free speech if you’re limited only to certain words? Similarly, do you have the right to bear arms if those arms are limited only to certain government-approved weapons?

If you answered “no” to either question, then how could you possibly support arbitrary caps imposed by the government in litigation regardless of what the evidence actually shows? It is impossible to legitimately reconcile those opposing viewpoints.

The right to trial by a jury is the most fundamental of our constitutional rights. Query: If a person has a right to a jury trial and the jury award is completely taken away, did that person have a court open to him for an injury done to him? Did he have a remedy? Was justice administered without denial? Did he have his constitutional right to a jury trial?

– Judge Wilson, West Virginia Supreme Court

The sad fact is that not only is this kind of selective enforcement of constitutional principles illogical and indefensible, it’s completely unnecessary.

Just weeks ago, Modern Healthcare published a report showing that tort “reform” damages caps don’t work – states with laws capping non-economic damages in medical malpractice cases are seeing faster growth in jury awards than the national average.  Sure, the report goes on to “blame” plaintiff’s lawyers for then focusing on economic damages.

“[Plaintiff’s lawyers] are very adept now at framing their case to make it all about economic damages, which are not capped,” [Steve] Chang said.

***

“They factor in the baby’s life expectancy, and what that child will need for that many years: Wheelchairs, around-the-clock-nurses, special beds and equipment. And that’s how they get to those claim amounts,” said Lois Mahoney, owner of New England Medical Legal Consultants.

– Joe Carlson, “States with med-mal award caps see faster growth in awards than national average, study finds

Many other tort “reform” myths have been debunked as well.

Wheelchairs for injured babies… that’s what tort “reform” advocates have been reduced to complaining about?  Should injured or brain damaged babies not received the medical care they will need over their lifetime?  If the defendant doctors, companies, or product manufacturers aren’t responsible for the necessary care for such children, then taxpayers will be.

The Founders understood that we, as a society, must take responsibility when we wrong someone.  If we are not accountable for our actions, then society – read “taxpayers” – will pay for the wrongdoer’s transgressions and provide care for the victims.  When tort “reform” bails out irresponsible individuals and corporations, taxpayers end up with the bill.  Why should taxpayers be forced not only give up a fundamental right, but also bail out negligent people or irresponsible corporations?

Tort “reform” doesn’t prevent frivolous lawsuits (remember, “reforms” like damage caps don’t even take effect until after the jury has found liability and awarded damages).  What tort “reforms” do is close the courthouse doors for countless victims and undermine fundamental constitutional protections.

We must preserve and protect each fundamental right if we are to protect any of them. Constitutional rights should not be attacked, demeaned, or trivialized for the political gain of an isolated lobbying group. Constitutional rights are the cornerstone of our society and, as Missouri’s founders explicitly said, should remain inviolate.

First and Second Amendment advocates who want to strip us of the right to a civil jury trial should remember that a jury of peers is the Founding Fathers’ way of protecting those other cherished rights. Or, as Judson Phillips of Tea Party Nation puts it, we need to use the Seventh Amendment to save the Second Amendment.

– Andrew Cochran, “Capping Gun Rights & Jury Rights Equally Wrong

The right to trial by jury – whether under the Missouri Constitution or the 7th Amendment of the United States Constitution – is the ultimate lynch pin for all other constitutional rights. Freedom of speech, freedom to keep and bear arms, freedom to contract, freedom of religion — all are ultimately protected by the freedom – inviolate in Missouri – to have your case heard in a trial by jury.

[More on Your 7th Amendment Rights]

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© Copyright 2013 Brett A. Emison

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16 Comments

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  1. jc says:
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    I strongly support medical malpractice tort reform. Brett Emison is arguing against tort reform because he is a plaintiff lawyer who wants a fat wallet. The fact of the matter is that legislatures routinely limit court awards in litigation to protect various industries from utilities to securities firms and yes, even plaintiff attorneys! (I cannot file a lawsuit against a plaintiff attorney who files a frivolous medical malpractice lawsuit regardless of the damages I suffer and regardless of how lacking in merit the claim is- – because we must provide unlimited access to the courts for all!) I personally believe that there should be no “pain and suffering” damages, only economic and healthcare damages. That is what a worker’s comp case gets and why should it be any different for medical malpractice cases?

    • Brett Emison says:
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      Dr. Cox,

      How dare you claim to know why I’m writing or what I’m thinking. I write because I value the constitution and legal system. It is by far the best in the world and lynch pin of our democracy.

      You’re tired and repeated complaints litter the Legal Examiner forums and fail to warrant any further response.

  2. jc says:
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    Yeh, Brett, you care about your wallet and the constitution in that order.

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    I agree that caps on damages are arbitrary. If people or companies due bad things that cause great harm, they should be held accountable, including if the damages are huge. But, I find it undeniable that there are frivolous claims in our legal system. Some are due to dishonest claimants. And, other claims are due to attorneys, who feel that the suit will be settled, as it’s cheaper for the defendant to settle the case, even trying the case and be successful. Arbitrary caps on damages won’t prevent that. I think, however, if we adjust the system that makes attorneys fees payable by the losing party, a market force would be generated, which would require plaintiffs and their attorneys to evaluate the risk/ likelihood of success vis-a-vis their costs.

    • Brett Emison says:
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      Alan,

      Thanks for your comment. However, with due respect, I think you’re wrong about the British Rule. As the US Supreme Court has noted, “our courts have generally resisted movement [towards the British Rule]…. [S]ince litigation is at best uncertain one should not be penalized for merely defending or prosecuting a lawsuit, and that the poor might be unjustly discouraged from instituting actions to vindicate their rights if the penalty for losing included the fees of their opponents’ counsel…. Also, the time, expense, and difficulties of proof inherent in litigating the question of what constitutes reasonable attorney’s fees would pose substantial burdens for judicial administration.” Fleischmann Distilling Corp. v. Maier Brewing Co., 386 U.S. 714 (1967).

      Research suggests that adoption of the British Rule actually increases litigation expenses and can make settlement less likely. See Vargo, The American Rule on Attorney Fee Allocation: The Injured Person’s Access to Justice.

      For more on why the American Rule is preferable to the British Rule, see here.

  4. jc says:
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    Well Brett, I have a solution to having the plaintiff pay for the cost of litigation to the defendant if the plaintiff loses. Make the plaintiff’s attorney liable for the defendant’s legal costs in the event that the plaintiff loses. Lets face it, medical malpractice plaintiff attorneys will become darn choosy if THEY become responsible for the defendants legal costs if they lose. Who should better know if they have a winning case than the plaintiff’s attorney. That would help justify that fat, juicy, 40% contingency fee that plaintiff attorneys charge.

  5. Brett Emison says:
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    JC – you’re like a scratched record that keeps playing the same verse over and over and over.

    And you apparently didn’t read the source material above.

    Let’s ignore, for a moment, the policy reasons why the British Rule is bad for poor people and injury victims – and there are many. Let’s put our focus where you keep returning – on your pocket book.

    In a case of “be careful what you wish for”, the Florida Medical Association asked for – and received – the British Rule that you so desperately want. Within 5 years the the FMA successfully lobbied for its repeal. Why? Because the British Rule resulted in expensive losses for negligent doctors and their insurance companies, who were forced to pay the plaintiff’s attorneys’ fees after losing at trial. In all of the legitimate cases – the vast, vast, majority of those filed – it’s going to be the defendants and insurance companies paying the plaintiff’s fees, which will be factored into settlement negotiations. That’s exactly why Professor John Vargo concluded that the British Rule actually increases costs and reduces settlements.

    Now, because there are lot fewer frivolous lawsuits than valid ones, it seems the British Rule is a loser for you and insurance companies – which is exactly what the Florida Medical Association found out.

  6. Mark Bello says:
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    Brett: As you know, there are far more frivolous defenses than frivolous lawsuits. Nobody seems to argue for citizens when they are financial squeezed, deliberately, by a negligent doctor, hospital, corporation or their insurance companies that refuse to pay what they should. The hypocrisy of those who call themselves “tort reformers” and 2nd Amendment advocates is palpable. I don’t have much in common with Tea Party types, put I have to respect the fact that they believe in ALL constitutional mandates, not just the ones that fit their own pocketbooks.

    That’s the problem with guys like Cox. He whines with no credibility because he and his negligent friends benefit from a system that penalizes victims and rewards misconduct. It is all about money to guys like him. He whines about plaintiff and lawyers and money but what he is really about is that the system dealt him, at some time in his life, a verdict that he thought was unfair and it cost him money. Only wrongdoers seek undeserved protections. Only wrongdoers want immunity from litigation results Tell the truth Cox; what did you do and what did it cost you? Let’s ask Mike Bryant.

  7. jc says:
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    Mark, you keep wanting some case from me that made me so against the corrupt medical malpractice system in this country. So I will give it to you. About 10 years ago, I was sued in a case because it was alleged that I misread an x-ray on a pt, I was treating. The plaintiff was involved in a horse riding accident and injured his back. After his back was fused, I looked at lateral x-rays and my report said the pedicle screws were in place. A couple years later, the plaintiff still had back pain, and a CT was ordered. I noticed on the CT scan that a pedicle screw was misplaced. Well, the plaintiff continued to have back pain and went to a lawyer who sued me for six years. It turns out that you cannot diagnose a misplaced pedicle screw on lateral x-rays, which is what I had. But when my hospital went to electronic records, they mistakenly titled my report as AP and lateral x-rays, and it was this report which was sent to the plaintiff’s attorney. Eventually, the plaintiff had a second stage back surgery to correct an underlying problem unrelated to the misplaced pedicle screw. We presented all this information to the plaintiff’s attorney who had about 25-30K invested in this case, and the plaintiff attorney wanted to settle for 200K! We filed a motion in Ohio against the plaintiff attorney because he continued the case in “bad faith”. Well, just before we were to go to court, Judge Reed threw the case out, without any monitary payment to the plaintiff. But Judge Reed refused to allow sanctions against the plaintiff attorney for the “bad faith” litigation. So I got sued for 6 years for a typographical mistake for which I had no responsibility on a case report which had no effect on the pateint’s eventual successful outcome. Imagine how upset I was when my malpractice insurance premium went up the next year. I have to report this case every time I apply for a state medical license or for hospital staff privileges. There are innocent docs out there too, Mark Bello, and the law should be fair to both sides.

  8. jc says:
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    Brett, lets discuss why the FMA decided lobby for repeal of the loser pays law in Florida. As I have stated many times in this blog, DOCTORS WIN 85% OF MEDICAL MALPRACTICE CASES THAT GO TO TRIAL. About 80% of cases that are filed against doctors are dropped without payment. So the Florida Medical Association (FMA) got a bill passed for “loser pays” in malpractice litigation. Florida judges would enforce “loser pays” against the doctor and his insurance company when the doctor lost. But Florida judges would not enforce “loser pays” against the plaintiff in a medical malpractice case when the plaintiff lost. Even when the judges did occasionally enforce “loser pays” against the the plaintiff, most of these plaintiffs were deadbeats and would not pay. So the docs were unfairly affected by “loser pays”. A way to rectify this problem is to include the plaintiff’s attorney in “loser pays”. This seems fair to me, because the plaintiff’s attorney is really a financial partner of the plaintiff, getting 40% of any settlement plus court costs. So if that partnership was liable for “loser pays” it would be equitable to both the docs and the plaintiff’s attorneys and it would force plaintiff’s attorneys to carefully screen their cases.

    • Brett Emison says:
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      Doc,

      There’s a lot going on here in your circular reasoning, so let’s try to set some of this record straight.

      (1) Thank your for acknowledging that the British Rule just doesn’t work. But the problem is not that judges didn’t enforce the British Rule, the problem for the FMA was that the judges did enforce the British Rule. When the courts enforced the British Rule, the malpractice insurers ended up having to pay more money.

      (2) That insurance companies and negligent actors would end up paying more under the British Rule makes logical sense. There are a very, very small number of cases which proceed to trial and which the defendant prevails. Studies across the country show that somewhere between 4% and 17% of injured victims even file a lawsuit. For ease of discussion, let’s err on the high side and use 15%. Of that 15%, only 3.5% of injury cases are resolved through either bench or jury trial. You parse the numbers and that means of all of the injured victims, only 0.5% ever even proceed to trial. Of that number, approximately half are won by plaintiffs and half are won by defendants. So, then if take a broad swath, we’re talking about – at most – 0.25% of injuries. [The numbers aren’t mine. They’re not made up out of thin air. The numbers come from the law review article, In Texas, Life is Cheap, 59 Van. L. Rev. 1875, 1896 (2006) and Briefing Book, Tort Litigation and Juries: By The Numbers, published by the Center for Justice & Democracy in December 2012.]

      (3) So then we have to talk about your definition of a “frivolous” lawsuit. A frivolous lawsuit (or a frivolous defense for that matter) is not one in which the party merely loses. There are usually two sides to every story and when the parties cannot resolve their difference outside of court – which happens about 96.5% of the time (see No. 2, above), then a jury must decide. In that situation, one party will be right and one party will be wrong. But that one party is wrong does not – in and of itself – make either the claim or defense a frivolous one. Really, there is only a very small subsection of suits in which the plaintiff’s claim in completely frivolous – i.e., there is no legitimate chance for the plaintiff to prevail and the suit is brought for some nefarious purpose.

      (4) The contingency fee system – rather than promoting frivolous lawsuits – prevents frivolous lawsuits. Insurance companies don’t pay money on claims in which the plaintiff has no shot at winning. Frivolous lawsuits don’t get verdicts (and if they did, then by definition, the lawsuit would not be frivolous), they get dismissed. A Plaintiff attorney on a contingent fee contract gets paid only if he or she wins the case. A frivolous case has no shot at winning. Therefore, a plaintiff attorney filing a frivolous case has not shot at getting paid. A plaintiff attorney who files frivolous cases goes out of business very quickly. For this reason alone, plaintiff attorneys always carefully screen their cases and a modified British Rule is completely unneeded. Moreover, because the attorney doesn’t get paid until the recovery is received, it’s in the plaintiff attorney’s best interests to resolve the matter as quickly and efficiently as possible.

      (5) There is, however, rampant abuse by defendants of frivolous defenses. Insurance companies get to keep the money they would otherwise pay injured victims until forced to pay by a court. This provides a substantial financial incentive for the insurance company to delay the resolution of the litigation. Insurance companies have lots of money while an injured victim has likely been unable to work and incurred substantial medical bills. This provides a substantial incentive for the insurance company to provide a low-ball offer in hopes that the injured victim is in such dire financial need that the victim will accept less than just compensation for his or her injuries. Defense lawyers are paid by the hour. The more hours they bill, the more money they make. This provides a substantial incentive for defense lawyers to overwork – and over bill – the case which both delays resolution and recovery for the plaintiff and increases litigation costs for the defendant.

      In short, there is no need to trample on the constitution or civil liberties of all Americans to right your perceived wrong. Perhaps your fury would be better directed at your malpractice insurer who, according to your story, drastically increased your premium without just cause. There’s something I think we could agree on.

  9. jc says:
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    In 2010, there were 163 jury verdicts in Pennsylvania for medical malpractice. There were only 30 verdicts for the plaintiff, which means the plaintiff’s attorneys lost 81.6% of the time! The Doctors Co. and The Medical Protective Co, the two largest malpractice insurers report a 90% trial victory rate and they both say that 80% of the cases filed against their client doctors result in no payment! But the numbers for the plaintiff attorneys are even worse that I have mentioned above. That is because it can cost $100K to bring a medical malpractice case to trial and the plaintiff attorneys typically charge a 40% contingency fee meaning that the plaintiff has to win verdict >$150K before he sees a dime! Earlier on this blog, I detailed a case that I was personally involved in which was purely frivolous, with no merit, yet Judge Reed refused to allow sanctions against the plaintiff attorney. You say that plaintiff attorneys have an economic incentive to only pursue worthwhile cases. Unfortunately, any attorney can file a medical malpractice case the day after he passes the bar examination. For this reason, lots and lots of frivolous medical malpractice cases get filed resulting in the lopsided defendant statistics which I have previously stated. This is why I believe the whole medical legal justice system should be junked in favor of medical courts. Get the corrupt judges and plaintiff attorneys out of the system and let a medical court quickly adjudicate these issues in months not years!

    • Brett Emison says:
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      Dr. Cox,

      Your circular reason just keeps getting the better of you. But thank you for acknowledging there is no financial incentive for attorneys to file frivolous lawsuits. As you state, it is very expensive for a plaintiff to litigate an injury claim. These plaintiffs are often severely injured, have stacks and stacks and stacks of medical bills, and have lost their ability to work. They are in a dire financial position – most often through no fault of their own. They cannot afford to pay an attorney by the hour.

      A plaintiff’s attorney can help them. The attorney risks his own money – puts his own financial position at risk in taking the case. The attorney pays for his own staff and overhead. The attorney pays the filing costs. The attorney hires the expert witnesses – the medical expert to prove causation and injury; the life care planner to prove the care needed for the victim in the future; the economist to prove the costs of medical care and the value of lost wages. Those experts don’t work for free and it is the plaintiff’s lawyer who bears the entire risk.

      If the plaintiff lawyer files a frivolous lawsuit, he will lose. Not only will the lawyer not earn a fee, he or she will lose all of the litigation expenses they have advanced for the client. You’ve explained very well why any lawyer filing a frivolous lawsuit will very quickly be out of business.

      There is no lawsuit crisis in this country. We don’t need to scrap the best justice system the world has ever known and disregard fundamental liberties enshrined in the Constitution.

  10. jc says:
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    Brett, I respectfully disagree with you. Frivolous litigation is a concern. The cost in time and money and professional reputation is a concern, as my case illustrates. Most patients and their families want to know what if anything went wrong when a bad medical result occurs. These people and the unfortunate doc that treated them, need to have their questions and issues answered promptly, not take 6 years to adjudicate issues! My case clearly illustrates that judges and lawyers are incapable of handling complex medical issues in a timely, compansionate manner. That is why I say scrap the current system and go for medical courts. We do it in other fields, we should do it with medicine too!

  11. Brett Emison says:
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    Doc – I know you disagree with me. You’ve said the same exact thing 7 times now. You’re a broken record. Repeating it in a mantra does not make it so.