I often get asked how our jury system works. The U.S. Constitution and State Constitutions grant you 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. . . .
This right to trial by a jury of our peers is the great equalizer that permits our Constitution to work. Whether you a celebrity, a multi-billion dollar corporation, John Q. Public or even the government itself, the guaranteed right to trial by jury puts you on equal footing in the eyes of the law.
Here is one story that gives a juror’s perspective, as well as that of the injured person. Hopefully, it sheds light on how our system works.
[Editorial note: I am an attorney. I do represent injured people. However, I do not practice medical malpractice litigation.]
According to Scientific American, preventable medical mistakes kill 200,000 American each year. Despite all those deaths, there are those in society who want you to give up your Constitutional right to a jury trial if one of these accidents happens to you or your family member.
Why would anyone give up his or her constitutional right to a trial by a jury of peers?
Why would we give up a fundamental constitutional right in order to protect negligence that kills 200,000 people per year? Do insurance lobbyists have us so scared that we would give up a fundamental right deemed so important that it was included in the original Bill of Rights?
What are we really scared of? Some facts from allbusiness.com:
Average liability premiums across internists, general surgeons and OB/GYNs are nearly identical for states with or without caps on medical malpractice damages
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 internal medicine are nearly 10% higher in states with caps
"Malpractice insurers promised tort law changes would lower premiums, yet it has not happened."
If caps on damages and keeping valid lawsuits out of court do not reduce malpractice rates for doctors or the premiums that you and I pay for health insurance, what does it do? According to the Columbia Tribune and Kansas City Business Journal, it lines the pockets of insurance companies.
Family health care premiums for employer-provided insurance in Missouri will have risen an estimated 3.6 times faster than workers’ earning from 2000 through 2009, according to a Families USA report.
Family health insurance premiums for employer-provided coverage will have risen 82.5 percent in the period, whereas median earnings have risen 22.8 percent. . . .
Families USA said that higher insurance premiums have been coupled with "thinner" coverage and higher deductibles, copayments and co-insurance.
Pollack blamed rising premiums on "wasteful heath care spending, an almost-unregulated insurance market, a dramatic drop in competition in the insurance market and costs shifted from the uninsured to the insured, termed a ‘hidden health tax.’"
In Missouri, those with employer-provided health care are paying more money for less coverage. . . even though Missouri passed dramatic tort reforms in 2005. According to the Columbia Tribune, after the tort reform passed, medical malpractice insurance companies increased their profits of couple percent to nearly a 25 percent return on investment.
While the insurance companies make money, malpractice victims are effectively denied their Constitutional right to be heard in court.
"Effectively, the courthouse door has been slammed in their face by the non-economic cap put on in Missouri," [said a Missouri attorney] who represents plaintiffs in medical malpractice litigation. "What was pushed as stopping the windfall for the plaintiffs has turned into a windfall for the insurance companies."
With the cap in place on economic damages, little can be recovered when the plaintiffs are children, nonworking mothers, the retired and the disabled because there are no wages or long-term earnings involved in the computation of what can be recovered.
In Missouri, tort reform supporters have placed almost no value on the life of children, stay-at-home moms, the elderly and the disabled. Isn’t the life of a stay-at-home mom worth as much (if not more) as some corporate executive? In a Missouri medical case, it is not. How have we come to sacrifice the Constitutional rights of mothers, children, the disabled and the elderly.
Unfortunately for one insurance lobbyist, he learned his lesson too little too late. Frank Cornelius wrote a piece entitled, Crushed By My Own Reform, which was published in several major newspapers including the New York Times and the Dallas Morning News. My citation below comes from the Dallas Morning News, October 10, 1994, Monday, HOME FINAL EDITION, at p. 13A.
In 1975, I helped persuade the Indiana Legislature to pass what was acclaimed as a pioneering reform of the medical malpractice laws: a $500,000 cap on damage awards, and elimination of all damages for pain and suffering.
I argued successfully that such limits would reduce health-care costs and encourage physicians to stay in Indiana _ the same sort of arguments that now underpin the medical industry’s call for national malpractice reform.
Today, from my wheelchair, I rue that accomplishment.
The cost of this cascading series of medical debacles is painful to tally:
- I am confined to a wheelchair and need a respirator to keep breathing. I have not been able to work.
- I have continuous physical pain in my legs and feet, prompting my doctor to hook me up to an apparatus that drips morphine. My pain used to rate a 10 on a scale of 1 to 10. Now it’s about a 4.
- Twice, I have received last rites from my church.
- My marriage is ending, and the emotional fallout on our five children has been difficult to witness, to say the least.
- At the age of 49, I am told that I have less than two years to live.
My medical expenses and lost wages, projected to retirement age if I should live that long, come to more than $ 5 million. Claims against the hospital and physical therapist have been settled for a total of $500,000 — the limit on damages for a single incident of malpractice.
The kicker, of course, is that I fought to enact the very law that limits my compensation. All my suffering might have been worthwhile, on some cosmic scale, if the law had accomplished its stated purpose. But it hasn’t.
Indiana’s health care costs increased 139.4 percent from 1980 to 1990 — just about the national average. The state ranked 32nd in per-capita health care spending in 1990 — the same as in 1980.
It’s understandable that the damage cap has done nothing to curb health-care spending; the two have almost nothing to do with each other.
The prospect that these "reforms" will be enacted is frightening. Make no mistake, damage caps are arbitrary, wholly disregarding the nature of the injury and the pain experienced by the plaintiff.
They make it harder to seek and recover compensation for medical injuries; extend unwarranted special protection to the medical industry; and remove the only effective deterrent to negligent medical care, since the medical profession has never done an effective job of disciplining negligent doctors.
Medical negligence cannot be reduced simply by restricting consumers’ legal rights. That will happen only when the medical industry begins to effectively police its own.
I don’t expect to live to see that day.
We should not make the mistake that Frank Cornelius made. We should not give up our constitutional rights to protect ourselves from some imaginary bogeyman. Stand up for your rights. Protect yourself and your family.
Brett Emison is currently a partner at Langdon & Emison, a firm dedicated to helping injured victims across the country from their primary office near Kansas City. Mainly focusing on catastrophic injury and death cases as well as complex mass tort and dangerous drug cases, Mr. Emison often deals with automotive defects, automobile crashes, railroad crossing accidents (train accidents), trucking accidents, dangerous and defective drugs, defective medical devices.