Greg David at Crain's New York Wants Tort Reform... Why?
Brett EmisonJuly 07, 2010 10:34 AM
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Greg David at crainsnewyork.com wants tort reform in New York. My question is why?
I've written about the dangers of tort "reform" before. I won't retread all of the arguments against it, but I continue to ask: Why are so many people willing to give up a fundamental constitutional right in order to protect someone else's negligence and insurance company profits? Why are we so scared?
Most tort "reform" is limited to the arena of medical malpractice. But according to Scientific American, preventable medical mistakes kill 200,000 Americans every year. Despite all of these preventable deaths, insurance company lobbyists have convinced a great number of Americans to give up their right to a jury trial if one of these "accidents" happens to them or a family member.
The US Constitution and state constitutions grant us the right to a trial by jury.
Article III, Section 2: Trial by Jury, Original Jurisdiction, Jury Trials
7th Amendment: Trial by Jury in Civil Cases
"In Suits at common law..., the right of trial by jury shall be preserved...."
Why then would so many argue for the relinquishment of this fundamental constitutional right? Why would so many suggest we give up a fundamental constitutional right in order to protect negligence that kills 200,000 people each year? Why would so many eager to give up a fundamental right included in the Bill of Rights in order to protect insurance industry profits?
Even those at allbusiness.com reported a study from the Medical Liability Monitor that showed insurance companies do not pass on tort "reform" savings to either doctors or patients.
Average liability premiums across internists, general surgeons and OB\GYNs are nearly identical for states with or without caps.
Average liability premiums for OB\GYNs are nearly identical for states with or without caps.
Average liability premiums for general surgeons are nearly 10% higher in states with caps.
Average liability premiums for internists are nearly 10% higher in states with caps.
The allbusiness.com article quoted: "Malpractice insurers promised tort law changes would lower premiums, yet it has not happened."
While tort "reform" laws are not good for lowering insurance premiums for either doctors or patients, they are good at keeping genuine lawsuits from ever being filed. Why? Because tort reformers place little value on the lives of stay-at-home moms, the very young and the very old. Most tort "reform" legislation comes in the form of damage caps... particularly caps on non-economic damages such as pain, suffering and lost enjoyment of life.
Not only are these damages often the most significant damages in a case (ask yourself how much you would charge someone to cut off your toe, or your finger, or your hand, or you leg, or to sever your spinal cord and how much your life would change because of that injury), but for the very young and the very old, these are often the only damages available because Medicare or Medicaid has paid the medical bills and must be repaid from any recovery and there are little or no lost wages.
Plaintiffs attorneys finance cases out of their own pocket. Our own money is on the line. We only get paid if we win a recovery for our clients and, therefore, do not put our money into frivolous cases. Unfortunately, we are also not able to put our money into even very good cases when tort reformers have enacted unreasonably low damage caps. Tort "reform" caps effectively slam shut the courthouse door of all but those with substantial economic losses.
Isn't the life of a stay-at-home mom, a 10-year-old girl, or a 70-year-old grandfather worth as much (if not more) as a corporate executive, or a shop foreman, or a politician? In many states (including Missouri), insurance lobbyists and politicians in the legislature have determined that stay-at-home moms, 10-year-old kids and 70-year-old grandparents are not worth as much.
I ask again, why? No one is "taking" these rights away -- they are being relinquished voluntarily because of an irrational fear of some imaginary boogeyman. Don't be frightened or tricked by an insurance company lobbyist. Stand up for your rights. Protect yourself and your family.
Update: Joe Consumer at ThePopTort commented on expansive new laws supporting an open judiciary and tort liability law that is seen as one of the key laws within the framework of civil rights protection... in China. That's right, China is expanding its tort laws and access to civil justice while the US Chamber of Commerce and insurance industry lobbyists are trying to beat back our pesky 7th Amendment.