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Do You Have A Right of Free Speech If You’re Limited Only To Certain Words?

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Missouri Legislature Looks To Restrict Rights For New Tort ReformThere are at least 250,000 distinct English words in our vocabulary. Other estimates put the number of English words at nearly 1 million to significantly more than a million words.

Would you have the right of freedom of speech if that speech were limited to a certain vocabulary – say 500 words? Or even 350,000 words? It's an interesting question. On the one hand, you could say anything you want within the confines of this artificially limited vocabulary, thus providing "freedom" of expression within such confines. But on the other hand, if one is artificially limited in the words you can speak, then how does one have true freedom of speech?

Similarly, do you have the right to bear arms if said arms are limited only to long bows, pellet guns, and a .22 caliber rifle? On the one hand, you can have unfettered right to keep and bear those three weapons. On the other, does that right truly have value if limited in such a way.

These fundamental questions came to mind driving into work this morning after hearing a local conservative radio host advocating the amendment of the Missouri Constitution to limit or outright revoke Missouri's constitutional right to a jury trial in one segment while in the very next segment protesting against anticipated regulation of firearms in the wake of the Newtown school shooting tragedy.

How could this radio host possibly reconcile these two positions?

You see, the Missouri legislature has proposed amending Missouri's constitution to revoke the right to jury trial that has been protected "inviolate" by Missouri's constitution for nearly 200 years. There are currently two proposals filed to amend the constitution – HJR 6 filed in the Missouri House and SJR 1 filed in the Missouri Senate. Each would revoke "the right of trial by jury as heretofore enjoyed" and replace it with a mechanism that would permit a political legislature to artificially limit the damages recoverable by an injured person without hearing or considering any evidence of the wrongdoer's conduct or the injured victim's injuries and damages.

"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, WV Supreme Court

The radio host suggested that, even though the jury would be limited in what it could award, there would in fact still be a jury trial. The host also suggested that because economic damages remained intact (for now, at least), there was no true harm if the political legislature artificially restricted the right to recover non-economic damages. The host suggested that if an injured person had medical expenses and lost wages totaling $5 million (and which remained recoverable), there was little harm in limiting non-economic damages to $350,000 as proposed by the legislature.

But what about those many situations in which there are no (or minimal) lost wages and no (or minimal) lost income? What then? For example, what about a 30-year-old stay-at-home mother of a 2-year-old child killed by a doctor's negligence during routine surgery. The stay-at-home mother doesn't earn income outside of the home and would not have "lost wages". This mother was killed during routine surgery, so there are no additional medical costs associated with the doctor's negligence. For all practical purposes, there are no "economic" losses for this wrongful death. Nevertheless, her husband is left without his spouse and, more significantly, her child faces a life without his or her mother. What is the value of the loss this mother's services, consortium, companionship, comfort, instruction, guidance, counsel, training, and support of her husband and child who now face a lifetime without her? These are the non-economic damages artificially limited by politicians in the Missouri legislature.

The sad fact is that these limitations already exist in Missouri law. Due to a quirk in constitutional interpretation, the $350,000 damages cap arguably remains for negligence that kills a patient, but does not apply if the patient is injured, but survives.

Or what about an 30-year-old man who had the wrong leg amputated by a negligent doctor. The patient has an office job, so there are no (or limited) lost wages. Future medical care is limited to a prosthesis and physical therapy. But prior to the malpractice, the victim was a world class amateur althete… or mountain climber… or cyclist… or hunter… or you could keep going. Because of the injury, he can no longer do many of the things he used to enjoy and faces another 40-60 years of such limitation. What is 40 years of unnecessary physical disability worth? Is it more or less than $350,000? More importantly, who should make that decision? Should a legislative body subject to special interest influence and who has not heard any evidence whatsoever? Or should a jury of 12 independent citizens make that decision after hearing all of the evidence from both the doctor and the victim?

To ensure this artificial cap restricting the right to trial survives constitutional challenge, one proposal would have Missouri's legislature completely eliminate the common law right to jury trial. Imagine that for a second. Missouri legislators are proposing completely eliminating a fundamental right and it is being given serious consideration.

The fundamental right to jury trial dates back nearly 800 years to Article 39 of the Magna Carta and is cemented as an American fundamental right in the 7th Amendment to the United States Constitution. And Missouri's legislators have proposed eliminating this fundamental common law right and replacing it with a statutory right that can be freely amended, limited, or outright revoked based on whatever political winds happen to be blowing in Jefferson City at the time.

The 7th Amendment is the ultimate lynch pin for all other constitutional rights, which is why constitutional conservatives oppose attacks on 7th Amendment rights through tort reform. 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?

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.

The political special interests supporting this restriction of fundamental rights rely on outdated, disproved, and outright false reasoning in trying to scare the public into supporting these restrictions.

These groups called for caps of $250,000 for non-economic damages that included pain and suffering. Some even claimed that doctors were "fleeing" states without such caps on damages, closing their practices, or practicing "defensive medicine" by disregarding their oaths and ordering unnecessary tests and procedures.

However, a collection of 18 independent scholars, led by Professor Neil Vidmar, filed an amicus brief demonstrating this alleged lawsuit crisis simply never existed.

In fact, statistics show that the number of patient-doctors in Missouri has steadily increased over the past 4 decades. The American Medical Association's authoritative annual compendium – described as "the most complete and extensive source of physician-related information in the United States – showed that the number of doctors actively practicing patient care in Missouri increased even during the alleged periods of "litigation crisis." (Brief of Amicus Curiae Neil Vidmar, et al.). The increase occurred both in terms of absolute numbers and relative to Missouri's population.

The data also showed an increase per capita for "high risk" specialties such as neurosurgeons and OB-GYNs.

Studies in other states have shown that medical malpractice damages caps limit constitutional rights without any of the supposed "benefits" used to justify their implementation. For example, a study of the $250,000 damages cap in Texas showed that there was no support for the claim that physicians were leaving Texas prior to the caps and no support for the claim that physicians moved to Texas after the caps. In short, there was no shortage of doctors before "reform" and no increase in doctors after "reform."

"Before Texas adopted tort reform in 2003, proponents claimed that physicians were deserting Texas in droves. After tort reform was enacted, proponents claimed there had been a dramatic increase in physicians moving to Texas due to the improved liability climate. We find no evidence to support either claim."

Does Tort Reform Affect Physician Supply? Evidence from Texas

Indeed, even tort reform advocate Ted Frank of the Manhattan Institute, agreed that the study "substantially undermines the empirical case for the conventional wisdom that Texas' 2003 reforms against medical malpractice lawsuits attracted more doctors to Texas." Frank agreed the report was so damning he is "going to stop claiming that Texas tort reform increased doctor supply without better data demonstrating that."

"Representative government and trial by jury are the heart and lungs of liberty. Without them we have no other fortification against being ridden like horses, fleeced like sheep, worked like cattle, and fed and clothed like swine and hounds."

– John Adams

While the supposed benefits failed to materialize, damage caps like these have Draconian results for many patients and severely limit – or deny completely – their right to trial by jury and access to the Courts established and protected by the Constitution.

Such caps disproportionately affect children, the elderly, and stay-at-home parents. You see, these people are unlikely to be employed outside of the home and are unlikely to provide financial economic support to dependents or spouses. Thus, their economic loss is much lower than those gainfully employed and providing financial support to others. Arbitrary caps enacted by a legislature without consideration of the evidence at trial disproportionately affects these victims. Moreover, under such caps, a child who is the victim of malpractice and born disfigured or brain damaged must live an entire lifetime with this damage while an elderly person may live only a few months or a few years with similar injuries. Under the arbitrary caps that ignore the right to trial by jury, the non-economic damages are the same.

And what about accountability? Why should someone who is negligent not be held accountable? Damage caps like those proposed by these special interests and some legislators provide de facto immunity for many negligent actors. If the negligent actor is not responsible, who then bears the cost of their bad conduct? Answer: You and me.

And what of our Liberty? Will you set aside your fundamental rights so easily?

[More on Your 7th Amendment Rights]

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© Copyright 2012 Brett A. Emison

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