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Brett Emison
Brett Emison
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Parsing the Gate Way Group’s Tort Reform Policy Paper

5 comments

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Ok, I’ve written a lot about medical malpractice lately (here, here and here) (which is particularly unusual as our firm hasn’t handled a single med mal case in the 10 years I’ve worked here).  But an attack on the 7th Amendment right to jury trial for medical malpractice is just as sinister and unwarranted as attacks on the civil justice system in any other area of the law.  One of the players – at least in Missouri – is the Gate Way Group.  Gate Way has published a policy paper in support of unconstitutional restrictions on the fundamental right to jury trial.

Gate Way’s policy paper – like other tort reform materials – is filled with mistruths and outright lies.  Let’s take a look.

“On July 21, 2012 the Missouri Supreme Court overturned the state’s cap on non-economic damages in medical malpractice lawsuits.”

True and False.  In Watts, the Missouri Supreme Court held that caps on non-economic damages in medical malpractice suits involving injury unconstitutionally violated a Missourian’s right to trial by jury under the common law.  For a more detailed analysis of the Watts decision, see here.

Medical malpractice suits involving death, arguably are still subject to the $350,000 cap.  In Sanders v. Ahmed, the Supreme Court held that a claim for wrongful death is statutory and has no common law antecedent.  While supporters of the 7th Amendment believe that Watts also abrogated the Sanders decision, there is not yet any case to provide guidance.  Arguably, at this point, the cap applies for death cases, but not for injury cases.

“As a result, there is no limit to what a jury can award a plaintiff under current law.”

False.  There is a limit.  It’s called evidence.

The jury is constrained by the evidence.  The trial judge stands as a gatekeeper to ensure the jury is constrained by the evidence.  The Court of Appeals stands as a gatekeeper to ensure the trial judge is constrained by the law and the evidence.  The Supreme Court stands a gatekeeper to ensure that the trial judge and the Court of Appeals are constrained by the law and the evidence.

There are no fewer than four levels of limits and protection to properly constrain an award for medical malpractice.

“The House of Representatives passed legislation in 2013 to reinstate the previous caps that were enacted under form Republican Governor Matt Blunt in 2005; however, the measure fell short in the state Senate in the final weeks of the 2013 legislative session.”

True, but with misrepresentation by omission.

What is left unsaid is that the reinstatement of unconstitutional damage caps was – and is – patently unconstitutional.  What is left unsaid is that the House of Representatives knowingly and purposefully passed unconstitutional damage caps that violated fundamental liberties.

Yes, the measure to reinstate unconstitutional caps failed because it was unconstitutional.

“Physicians and health care providers from around the state have teamed up with hospitals, ambulatory surgery centers, and other organizations to form the Show Me Tort Reform Coalition.”

I assume this is true.  It is not surprising.

“The coalition is working with legislators in a 2014 advocacy campaign to reinstate limits on non-economic damages, as they fear the status quo will lead to higher number of frivolous lawsuits and force providers out of the state.”

Pants-on-Fire Lie.

While the so-called “fear” of this coalition might be real, it is unwarranted.  Much like a child’s fear of the monster living in her closet.  Like the child’s fear, the coalition’s fear has no basis in fact or logic.

The coalition’s “fear” has been empirically disproved.

Damage Caps Do Not Prevent Frivolous Lawsuits.

By definition, damages caps can only apply to cases with merit and which the plaintiff not only wins, but has suffered and is awarded substantial non-economic damages.

In order for unconstitutional damages caps – like those sought by Burlison – to apply, the following must occur:

(1) The jury must find the doctor, hospital, or other health care provider was liable for the injury (an actual cause-in-fact of the injury); and

(2) The jury must find that the injured victim suffered some non-economic loss or injury (an incomplete list of non-economic damages includes pain, suffering, mental anguish, disfigurement, loss of consortium, loss of care, loss of comfort, loss of support, lost enjoyment of life, etc.) that was caused by No. (1); and

(3) The jury must find that the value of the injured victim’s non-economic loss is greater than $350,000 over the victim’s lifetime.

These caps have absolutely nothing to do with frivolous lawsuits and it is disingenuous and outright misleading for anyone to suggest otherwise.

While these caps don’t restrict frivolous lawsuits, they do fundamentally restrict valid lawsuits and, instead of protecting innocent victims, these caps protect negligent doctors and hospitals from being held accountable and accepting responsibility for the damage they cause.  Springfield-area Representitive Eric Burlison acknowledged as much in a News-Leader article when he said that he saw “caps as a way of keeping the number of claims down.”

Tort reform advocates like Gate Way and Rep. Burlison have admitted their goal is to re-institute patently unconstitutional damages caps for the purpose of restricting valid claims against negligent doctors.

Doctors Did Not “Flee” Before Tort Reform and Did Not Return After

This claim is proven false by empirical data from the Missouri State Board of Registration for the Healing Arts and the American Medical Association.

Data from the State Board of Registration for the Healing Arts show a steady – even growing – number of doctors throughout the so-called tort reform “crisis” and no substantial growth in in-state registrations after the unconstitutional caps were enacted.

Missouri Doctor Registrations Data: Mo. Bd. Reg. for Healing Arts

Missouri Doctor Registrations
Data: Mo. Bd. Reg. for Healing Arts

 

You can see from the data that there was no mass exodus.  In-state renewals for physicians actually jumped 4.23% from the previous reporting period in 2004 – just before the “boiling point” claimed by Gates.

Data from the American Medical Association using a broader time frame also show there was no exodus of doctors before tort reform and no mass return of doctors once unconstitutional restrictions were enacted.  This is a true fact based on the per capita number of doctors and also for the per capita number of doctors in so-called “high risk” specialties that include neurosurgery and Ob-Gyns.

Doctor-Patient Ratio MO - Vidmar Doctor-Patient Ratio MO - High Risk - Vidmar

Not only have doctors not fled Missouri over tort reform (or lack thereof), they haven’t fled any other state either.  For example, the “doctors are fleeing our state lie” was exposed in Texas as well.

“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

Even staunch tort reform advocate Ted Frank of the Manhattan Institute agreed that the Texas 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 is so damning he is “going to stop claiming that Texas tort reform increased doctor supply without better data demonstrating that.”

One medical malpractice insurance company produced an info-graphic that demonstrated unequivocally that there is no medical malpractice crisis.  It showed that nearly half of all medical malpractice payouts came from only 5 states (Florida, New Jersey, California, Pennsylvania, and New York).  It also showed that overall medical malpractice payments have been declining steadily since 2003.  The data from the insurance company also showed that “runaway juries” or “excessive” jury awards are not part of any alleged “crisis”.  Only 5% of all medical malpractice awards in 2012 resulted from a verdict at trial.  More than 90% of all malpractice payments were made voluntarily by the defendant doctor, hospital, or health care provider by way of settlement.

The Missouri Constitution ensures that “the right to trial by jury as heretofore enjoyed shall remain inviolate….”  [Mo. Const. Art. 1, sec. 22(a)].

Tell these special interests to stop messing with our constitution just to protect negligent doctors and their insurance companies from liability.  Enough is enough.

© Copyright 2014 Brett A. Emison

Follow @BrettEmison on Twitter.

 

5 Comments

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  1. jc says:
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    I am a strong supporter of medical malpractice caps on “pain and suffering”. I dispute Brett’s whole contention that this violates the 7th Amendment. First of all, most states, including Ohio, allow caps on “pain and suffering”. So Brett is saying that the Missouri Supreme Court is the only state court in the nation that is right and all the rest are wrong? Secondly, legislatures already restrict citizens right to a trial to promote the common good. Example of this include securities litigation. In 1990, a Merril Lynch stock broker stole $2800 out of my brokerage account. I could not use state courts to recover the money or get punitive damages. I was forced to go thru arbitration, where I eventually recovered the money. We have Worker’s Compensation which pays injured workers without the workers being allowed to take the company to court. By the way, if you lose a leg do to a work place injury in a factory, you do not get “pain and suffering” damages. Those are examples of where people with legitimate grievences are prevented from suing because the legislatures determine that it is for the common good. With Obamacare now enacted and going forward, doctors fees will be restricted. A major cost of doctors is medical malpractice. Caps on “pain and suffering” damages greatly reduced medical malpractice premiums and contribute to the common good.

  2. Brett Emison says:
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    Dr. Cox – thank you again for spending so much time reading the posts here at the Legal Examiner.

    I’ve responded to your same comments time after time after time. I don’t need to again.

    But you raised a new claim this time – that I’m saying “the Missouri Supreme Court is the only state court in the nation that right and the all the rest are wrong.”

    As usual, Dr. Cox, it’s you who is wrong.

    Missouri is one of many states that have found arbitrary damage caps unconstitutional. Here’s the list from the American Medical Association:

    Alabama (Moore v. Mobile Infirmary Ass’n)
    Arizona (Constitution prohibits caps)
    Arkansas (Constitution prohibits caps)
    Connecticut (No cap)
    Delaware (No cap)
    Washington, DC (No cap)
    Georgia (Atlanta Oculoplastic Surgery v. Nestlehutt)
    Illinois (Best v. Taylor Machine Works & LeBron v. Gottlieb Mem. Hosp.)
    Iowa (No cap)
    Kentucky (Constitution prohibits cap)
    Minnesota (No cap)
    Missouri (Watts v. Cox)
    New Hampshire (Brannigan v. Usitalo)
    New Jersey (No cap)
    New York (No cap)
    North Carolina (No cap)
    North Dakota (Arneson v. Olson)
    Oklahoma (Woods v. Unity Health Center)
    Ohio (State v. Ohio Academy of Trial Lawyers)
    Oregon (Lakin v. Senco Products, Inc.)
    Pennsylvania (Constitution prohibits caps)
    Tennessee (No cap)
    Vermont (No cap)
    Washington (Sophie v. Fiberboard Corp.)
    Wisconsin (Ferdon v. Wisconsin Patients Comp. Fund)
    Wyoming (Constitution prohibits caps)

    That’s 26 states – more than half the country that do not have caps. Doctors aren’t fleeing those states into the other 24.

    Your lies – but, more importantly, your fears – have been disproved. Tort reform does nothing but protect bad doctors at the expense of fundamental liberties.

    (Alt. Link to AMA Material)

  3. jc says:
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    Brett: In Ohio, in the 1990s we had a medical malpractice crisis. Insurance rates went thru the roof forcing neurosurgeons and OB-Gyns out of the area. The crisis was precipitated by the Ohio Supreme Court which ruled against caps on pain and suffering damages. Well, docs and businessmen got together and voted out the Ohio Supreme Court justices that thru out pain and suffering damages. New Justices were elected and, when pain and suffering damage caps were again passed and reviewed by the Ohio Supreme Court, those damage caps were upheld. So doctor medical malpractice insurance rates in Ohio have decreased by 40% over the past 10 years and we have not had any more medical malpractice crisises. Our cap on pain and suffering damages is $350K, so take Ohio off your list.

  4. Brett Emison says:
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    Doc,

    With respect to your crisis – show me the numbers and show your work. I showed my work with data from the Mo. Bd. of Reg. for the Healing Arts and the AMA. You say there was a crisis. I say prove it.

    Ohio stays on the list. Your comment was directed at state supreme courts that overturned damages caps. The Ohio Supreme Court overturned damages caps.

    That Ohio’s doctors and businessmen got their special interests together to orchestrate a coup of the Supreme Court judges who voted against them is appalling and shameful. It’s exactly why there should not be election of judges and particularly why there should not be election of appellate judges.

    Another example of powerful special interests grouping together to protect negligent conduct and their bottom lines. Shameful.