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Brett Emison
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Did You Know… Rick Santorum Doubled Down On Tort Reform?

9 comments

I wrote before how Rick Santorum is "a big tort reform guy." Now, Santorum is doubling down on his anti-justice "tort reform" ideology, even after his wife was awarded $175,000 in a medical malpractice lawsuit. What hypocricy.

From the Des Moines Register:

Former U.S. Sen. Rick Santorum said Thursday he sees no inconsistencies between his support for legal reforms and his wife being awarded $175,000 judgment in a past medical malpractice lawsuit.

Now, I'm certainly not begrudging his wife's recovery for damages caused by a chiropractor Mrs. Santorum described as a "bad actor." Certainly, that's what our civil justice system is for. That is what our Founders intended. That is why we have a 7th Amendment to the US Constitution.

But Santorum is embracing a "do as I say; not as I do" philosophy and doubling down on a policy that effectively takes away that right from many other victims.

Santorum's wife chose to sue the chiropractor because she believed him to be a "bad actor" and to expose him in order to prevent others from being similarly injured under his care. Again, this is why the Founders included the 7th Amendment. Why is Santorum continuing to attack the same constitutional principles that allowed his wife her day in court?

Why are many of the Republican presidential candidate – including Santorum, Rick Perry, and Herman Cain – so clearly ignoring the calls of true conservatives against tort reform? Has The Chamber and AMA donated so much money and exerted so much control that these politicians would sell out some of the most sacred fundamental conservative values: Smaller government, free markets, responsibility, accountability, and justice?

Other leading conservatives – Fred Thompson, Rand Paul, Clarence Thomas, Andrew Cochran – have come out against tort reform. Tea Party leaders Judson Phillips and Mark Meckler have come out against tort reform.

I've asked this before, but it is a critical question, so I'll ask it again:

What is your remedy if someone violates your constitutional rights to free speech, to religious freedom, to keep and bear arms, to contract, etc.? These are civil law (or civil justice) claims in which you take the bad actor to court in order to have your rights protected. What happens when access to courts is limited? What happens when access to court is so lopsided that the average person cannot gain access? What happens when powerful lobbyists control the courts like they control other branches of government?

The 7th Amendment is the ultimate lynch pin for all other constitutional rights, which is why it's not just democrats and trial lawyers standing up for this fundamental freedom, but also constitutional conservatives who oppose attacks on 7th Amendment rights through tort reform.

Tort "reforms" also have the perverse effect of bloating federal government and penalizing taxpayers through government funded bailouts of negligent actors. Imagine someone is paralyzed by a defective product, a negligent doctor or a drunk driver. Tort reform either excludes the plaintiff completely from the court system or limits the recovery to only a portion of the plaintiff's actual life care needs. The bad actor is relieved of personal (or corporate responsibility) and the burdens of the bad actions are borne by taxpayers in the form of Medicare, Medicaid and disability payments.

Freedom, Liberty and Civil Justice are issue our founders fought and died for. They are issues that should unite us as citizens rather than divide us as partisans. Join those on both sides of the political aisle in standing up for our Constitution and for preserving Civil Justice rights and accountability.

[More on your 7th Amendment Rights]

[More from the Did You Know… Series]

(c) Copyright 2011 Brett A. Emison

Follow @BrettEmison on Twitter.

9 Comments

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  1. Thomas Payne says:
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    What about tort limitations on hedonic damages only? Would that put a burden on taxpayers?

  2. Brett Emison says:
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    @Thomas – To paraphrase your question, you ask if limiting hedonic damages – damages for pain, suffering, and the lost enjoyment of life – would put a burden on taxpayers? Maybe or maybe not. But it would not save taxpayers money either. And it would let negligent actors off the hook without being accountable for the full consequences of their conduct.

    Is that the world in which you want to live? A world where damages to an avid golfer, archer, hunter, fisherman, skier, piano player, baseball coach, school teacher, grandparent, etc. are not able to the activities which give them greatest joy because of injuries caused by someone else, yet these injuries go uncompensated?

    Why should the free market not assess the full amount of damages to the wrongdoer in such situations? Is that not a market cost? Is that not a cost of doing business?

    If the full market pressure is put on such negligent actors or defective product makers, then the market will dictated and force innovation and safer products. If the negligent actor is bailed out through damage caps or outright immunity, the free market forces for safety and customer service are artificially eliminated.

  3. Thomas Payne says:
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    Take a look at Figures 1 and 3 in that link. It isn’t that I am against the free market, but I believe that the free market is not ALWAYS an accurate reflection of justice. If it were, then why did the value of our “joy” increase so much in the last 30 years (see figure 1–jury awards have more than doubled in 30 years). I know that a lot of the increase in jury awards is attributable to an increase in actual costs, but much of it is also due to the first recognition of hedonic damages 26 years ago, as well as rogue juries which punish defendants out of anger. Hedonic damages simply can’t be measured by money and trying to put a value on pain and suffering causes juries to just punish defendants. Unfortunately, that cost is just passed off on other consumers, only hurting the taxpayers in the end (see Table 3).

  4. Brett Emison says:
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    T Payne – I’ve not had an opportunity to review the study you cite, but see that it came from the Manhattan Institute, which has a well-documented tort reform agenda. Because I have not yet reviewed the study I cannot say for certain that it is incorrect, but the source makes me highly skeptical.

    I fundamentally disagree that medical malpractice premiums are driven by jury verdicts. (See, for example, http://bit.ly/ubDG87.

    That non-economic damages are difficult to compute does render them “impossible” to compute. Nor does it render such damages “unjustifiable” or “frivolous” or “extraneous”.

    More importantly, that such damages are difficult to compute does render such damages any less meaningful or less real than out-of-pocket expenses. For all of my clients, the lost-enjoyment of life is a much, much greater loss than the cost of the most expensive medical procedure.

    Letting wrongful actors off the hook for such damages negates these very real damages and obscures the true cost of negligent conduct.

  5. Cilla Mitchell says:
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    Providing a link to a video showing what happens when a person’ constitutional rights are violated. This a is chronological time frame of a 17 1/2 hour stay in a Texas emergency room where the patient was left forgotten and to rot without receiving the basic standard of care.

    Rick Perry stated that tort reform has decreased medical costs in Texas. Well, guess the boy is right because how can medical costs go up when medical care is not provided?

    The link to the video shows collateral damage left behind tort reform.

    http://www.youtube.com/watch?v=JT7rxa21_Xo

    If you can not access link, Google Cleveland Mark Mitchell, then click on youtube Cleveland Mark Mitchell December 12 1950 – April 26 2008.

    Thank you for your time.

  6. jc says:
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    I am strongly opposed to hedonic damages. That is because they are too subjective. What ends up happening is that hedonic damages end up becoming like punitive damages. So a doctor works all his life and treats thousands of patients well. Then one night at 2 AM he is half asleep and called into the ER and he doesn’t have his “A” game. Something gets missed and the pt suffers and now hedonic damages can be used to force the doctor and his family into poverty. I believe we need a new system of medical courts to deal with these issues.

  7. Brett Emison says:
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    JC – surely you had something better to do on Christmas Eve night than post a comment shilling for tort reform? C’mon.

    Given the context, this is a sad commentary in and of itself. Its merits aren’t much better. Part of your hypothetical involves a doctor “at 2 AM” “half asleep” who “doesn’t have his ‘A’ game”. Stop right there. This doctor shouldn’t be there. He or she should not be practicing medicine in that condition. The hospital should be staffed properly and have fully awake, conscious, and competent doctors.

    We have hours of service restrictions for pilots, truck drivers, day care workers, etc. Why should we not have them for doctors? Doctors perform critical, life-and-death care. I don’t want a resident who is on the last 30 minutes of a 48-hour shift cutting me open. I don’t want a nap in the lounge and the last Red Bull in the fringe to perhaps mean the difference between life or death to me.

    Doctors play a critical role if life-and-death situations. There are plenty of great doctors. There are some bad doctors. And there are some very good doctors put into horrible situations by greedy hospital administrators and a culture of overwork and competitiveness.

    I don’t want to sacrifice fundamental constitutional liberties secured in the Bill of Rights to protect a few bad doctors.

  8. jc says:
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    When I go to court, I want John Edwards to represent me too, but he is probably not available. The facts are that greedy administrators and understaffed hospitals are not usually on trial in malpractice cases. Medical decisions are made in minutes, legal decisions often take years. You rarely have all the facts with medical decisions. I hear all this 7th admenment stuff about the “right” to take people to court. Well, I can’t take a stock broker to court, I have to go to arbitration. I can’t sue a company for a work related accident, I have to go thru worker’s compensation. I can’t sue a public utility for power interruption, I have to complain to the PUC. So if Obamacare is going to turn medicine into a public utility, then we need to resolve disputes in medical courts instead of thru the current advasarial system. In New Zealand, people injured in medical malpractice go into the worker’s compensation system.