December 10, 2012

The Pop Tort on Most Far Reaching Tort “Reform” Proposal Yet

by Levin & Perconti

Those who follow civil justice issues know that most “tort reform” efforts are state-based. In other words, changes to the civil justice system--like arbitrary damage caps and new rules for seeking accountability in medical malpractice cases--are passed by state legislatures, not Congress. That is why it is a seemingly never-ending battle to protect these rights for all Americans. There are many different state coming up with various proposals (at the influence of big interests) to take away justice rights.

For example, the Center for Justice & Democracy recently flagged two states which have proposals in the works to possible go entirely overboard and eliminate the right to a jury trial altogether. Legislation has been introduced in both Florida and Georgia which were drafted by a leading healthcare company owner. Not surprisingly, the proposal is a direct affront to the rights of medical patients and a way for medical interests to be insulated from ever being held fully accountable for their conduct.

Eliminate the Jury Entirely?
As explained in the post, the proposal actually completely eliminates the right to a jury in medical malpractice cases. Instead, the cases would go to a new government-run panel. The panel would be charged with coming up with dollar figures for certain medical errors and their consequences. Like a menu, there would be a list of injuries and costs--so much for a dead child, so much for paralysis, so much for loss of an eye, and so forth. Instead of juries hearing all of the evidence in the case and the unique consequences for each individual patient, there would just be blanket one-size-fits-all rules made by government bureaucrats without any familiarity with the specifics of each case.

There are many ways to point out the vast array of problems with these proposals--many of them stem from conservative critiques. After all, a classic conservative is weary of new government agencies, and sides with options that are based in free-market principles--not rules handed down from on high by government appointees. However, these proposals does just that, takes options out of the hands of citizens and infuses politics and big government decision-makers.

In addition, there is the fiscal reality. Why would these states spend limited resources in the tight economic environment specifically to handle something that is already being handled without the agency? The financial costs is particularly wasteful when one considers how small a percentage medical malpractice matters are of the entire civil caseload. It makes no sense to spend time and resources taking away juries in those cases and giving it over to government employees.

Those and similar points are spelled out in more detail by the Center for Justice and Democracy in a new report that explains the problems with the Georgia and Florida proposals. The full report can be found here. On top of the financial concerns, like all tort reform efforts, this one is heavily slanted against patients. Instead of relying on the decisionmaking of unbiased judges and juries, the proposal places power in the hands of political players mostly from the healthcare and business communities. The fact that this sort of obvious bias exist should lead these proposals to be laughed out of the legislative body.

See Our Blog Posts:

On the Merit of Jury Decisions

Technology & Increased Medical Costs