Consumers Lose and Corporations Win with Legal Damage Caps
By Lynn Shapiro, Staff Writer
PersonalInjury.com had the opportunity to speak with National Trial Lawyers editor, Larry Bodine—the reporter who covered all the critical tort law reform decisions that have wound their way through the state courts in recent years.
So called ‘tort law reform’ involves capping non-economic or emotional distress damages, awarded for shock and outrage, pain and suffering, and the inability to enjoy life, in cases of injury or wrongful death, Bodine says.
Before walking us through the rulings--which are within the province of state law-- Bodine says that, “in a nutshell, tort reform is an anti-consumer movement”, benefiting the insurance companies.
“It essentially punishes children, the elderly and the disabled, who are victims of medical malpractice and defective products and accidents,” he says.
Let the Courts Decide
Bodine believes that any awards won for injury or wrongful death belong in the courts’ jurisdiction, according to the 7th Amendment, guaranteeing US citizens a fair trial; and the 14th Amendment, guaranteeing equal rights to all citizens in all 50 states,
“These are important rights that cannot be hobbled by legislators who are being lobbied by the very interests that pay the awards--and whose profits depend on capping them,” Bodine argues.
But that’s what’s happening. So far, the pro-reform PAC has pushed through non-economic damage caps in 23 states. (http://www.fed-soc.org).
The US Chamber of Commerce spends $50 million a year lobbying state Senators and Representatives to pass tort reform laws for personal injury cases, including medical malpractice and accidents, Bodine says.
Luxury Vacations and Bills Written
Meanwhile, “another group with a friendly name, dubbed ALEC-American Legislative Exchange Council-- holds luxury vacations for state legislators and passes out model legislation.
“They say ‘here’s a bill; we’ve already written it for you.’”, Bodine says.
Besides the insurance companies, the pro-business PAC includes trusted names like: The American Hospital Association, The US Chamber of Commerce, and Fortune 500 companies.
Med Mal Hoax
“It’s the Florida case, Estate of McCall v USA, that says it all to me,” Bodine says. He wrote about the ruling in The National Trial Lawyers. (http://www.thenationaltriallawyers.org/2014/medical-malpractice-crisis-bogus/
“This was a case where a 20-year mother, Michele McCall, died four days after delivering a baby.
She had developed high blood pressure and preeclampsia, a critical condition that requires immediate cesarean section. The family doctors allowed her to deliver the baby vaginally.
Meanwhile, she had lost a lot of blood, but the doctors said she was stable, Bodine wrote.
If she had received a blood transfusion she might have lived, but the nurse monitoring her vital signs did absolutely nothing (except draw her blood), until McCall went into shock and cardiac arrest.
The family went to court and recovered $90,462 for financial losses and $2 million in non-economic damages, but the $2 million non-economic reward was cut in half, due to the statutory damage cap that was Florida law.
Case Ruled Fraudulent
The Florida Supreme Court threw out the state legislature’s cap and gave McCall her $2 million back.
Justice R. Fred Lewis did his homework and found that the lobbying efforts that persuaded legislators to pass the malpractice cap in the first place were “all about a medical malpractice crisis that never existed,” Bodine said.
Contrary to what the insurance companies were claiming, “there were no frivolous lawsuits or excessive jury verdicts in Florida,” the judge determined.
He said “the cap on noneconomic damages serves no purpose other than to arbitrarily punish the most grievously injured or their surviving members.”
He also said the caps did nothing to reduce medical malpractice insurance rates because the laws had no provisions for passing their savings on to physicians.
What really triggered the insurance companies to cap damages in this case was a down cycle of bad investments the companies made in stocks and bonds, the judge ruled.
They thought they could hide the losses by capping the damages of powerless, middle class people.
The judge declared that “this inherently discriminatory action and resulting invidious discrimination do not pass constitutional muster.”
(Estate of McCall v. USA, SC11-1148 (March 13, 2014).
Shocking Profits of 4,300%
The Florida judge said ‘the profits would probably shock most concerned.
“Indeed, between the years of 2003 and 2010, four insurance companies that offered medical malpractice insurance in Florida cumulatively reported an increase in their net income of more than 4,300 percent,” the judge declared.
Doctors Not Included
Perpetuating their fiction, the tort reformers claimed that “exorbitant awards” were causing doctors to flee the state. The judge found the opposite to be true.
The number of doctors in Florida had been increasing during the time period in question, Bodine wrote.
“The real twist,” he says, “is that while insurance companies were delivering record profits, they didn’t reduce physicians’ premiums.
The judge saw through this fraudulent behavior.
He said the damage caps did nothing to reduce medical malpractice insurance rates, since the law had no provisions for passing their savings on to doctors.
“They’ll lie and fabricate to increase their profits. Meanwhile, studies show there are 100,000 patients every year who die from med mal cases,” Bodine says.
Economic Damages Halved and Amortized
Another far-reaching decision, in the Missouri Supreme Court, is protecting people from what the judge termed “hostile legislation.”
The case involved a baby who suffered disabling brain injuries because of botched medical care “by not one, but two doctors," Bodine wrote.
The baby’s mother, Deborah Watts, won a $1.45 million jury award for non-economic damages, and a $3.37 million award to cover future medical damages.
The state law not only slashed the family’s non-economic damages from $1.45 million, to $350,000.
It split the $3 million medical damages award in two, doling out half of it to the severely brain-damaged baby’s Mom in annual installments over a 50-year period, at an interest rate of 0.26 percent.
The Missouri Supreme Court declared the statute unconstitutional, ruling that it violated the right to a trial by jury,
“Once the right to a trial by a jury attaches, as it does in this case, the plaintiff has the full benefit of that right, free from the reach of hostile legislation,” the judge ruled.
(Watts v. Cox Medical Centers, 2012 Mo. LEXIS 155 (July 31, 2012)opinion http://www.courts.mo.gov/file.jsp?id=55761)
Damages Slashed for Girl Mauled by Pitbulls
A Georgia court came to a rigidly conservative decision in a case involving a seven-year-old girl, who had her arm amputated after two pitbulls visciously attached her while she was shooting basketballs in her back yard, Larry Bodine says. (http://www.http/thenationaltriallawyers.org/2015/tort-reform-punitive.)
Her punitive damages award was slashed from $36 million, to $250,000.
Although the judge admitted that the badly injured child, Erin Ingram, was entitled to the $72 million the jury awarded her, he told the court he had no choice but to hand down the law as written,
The National Trial Laywers reported. (Ingram, et.al. v. Vaughn, Case No: 12A-41402-S (January 12, 2015, DeKalb County Senior Judge Matthew Robins, Decatur, GA).
Decision Imminent in Ohio
Bodine says there’s a controversial tort reform being tried right now in the Ohio Supreme Court.
A jury awarded $3.5 million in punitive damages to a girl who was 15 when she was raped twice by her pastor during counseling sessions in 2008. He had a history of sex offenses that the church kept secret.
The court’s ruling was contrary to the Ohio state law capping the amount of non-economic damages for any injury that isn’t physically catastrophic.
The judge awarded the now 22-year old woman the maximum amount allowed for non-catastrophic illness, which is $350,000.
Last December, the plaintiff’s lawyer, John Fitch, asked the Ohio Supreme Court to re-evaluate a prior decision upholding the cap in a previous product liability case.
“The damage caps on non-catastrophic illness should be ruled as unconstitutional when awarded to child sex-abuse victims,” Fitch is arguing.
A decision is expected any day now, Bodine says. (Jessica Simpkins, v. Grace Brethren Church of Delaware, Ohio Supreme Court Case No. 14-1953
lower court opinion at: http://caselaw.findlaw.com/oh-court-of-appeals/1675496.html)
“People don’t understand how pernicious tort reform is, Bodine says.
“They think they’ll go to court and the jury will reach a verdict. “They don’t deserve these artificial limits placed on their money.”