Subverting the 7th Amendment

We've all seen the news stories and ads on television talking about the malpractice crisis, and the corresponding calls for medical malpractice reform.  While the Center for Legal and Responsible Commerce does not litigate medical malpractice cases, the consumer issues involved in medical malpractice reform reach far beyond the medical malpractice system.  Quite simply, you are being lied to and so are your doctors.

One of the leading arguments for placing caps on pain and suffering damages is that they are large, vary greatly even between similar injuries and plaintiffs, and juries are unqualified to place a value on a subjective complaint.  Do you see the inconsistency?  The reason the amounts vary greatly is in part due to the difficulty in quantifying the value of a normal life, a life free from pain, or a spouse's value. The other part of the problem is that juries are operating in a vacuum, they have no idea of how much another jury has awarded a similarly situated plaintiff.  Is it not somewhat hypocritical for defendants to be complaining that a rule put in place to protect them (juries not being told what other juries have awarded given these facts), forms their basis for getting rid of the jury?   

When you get down to it, the medical malpractice and tort reform movements, have as one of their core and unstated principles, the jury is stupid.  That individuals from a cross section of the community are incapable of making a reasoned decision as to what a particular plaintiff deserves.  Tort reformers tacitly admit this in their legislative initiatives, when they expressly require the jury to be kept in the dark about damage caps that will be impossed by the judge when entering judgment on their verdict.  The push for caps on damages is not just to prevent wide disparities in verdicts, but to limit the number of cases brought by altering the economics of litigation.  

In some states, there are caps on aggregate damages, caps set so low that only plaintiffs who have suffered minor injuries will be fully compensated. Medical malpractice lawsuits are extremely expensive to litigate.  A plaintiff will easily spend $50-100K just to get to a verdict. Defendants know this, and they know that by capping non-economic damages (e.g., pain and suffering, loss of a normal life, loss of consortium, etc...) they will make it extremely difficult for some plaintiffs to recover the full amount of their economic damages (e.g., medical bills, lost income, etc...). 

Insurers (the financiers of the tort reform movement) know that attorneys will not pursue medical malpractice cases if the ability to recover for their client and themselves is low enough.  Many plaintiffs attorneys will attest that part of the reason the cost of litigation is so high, especially in medical malpractice, is because of the frivolous defense tactics employed by insurers, which prolong and drive up the out of pocket cost of litigation.  This changing of the economics of litigation is the goal of the "reform" movement. No one will deny that medical malpractice happens. Just because a doctor has committed malpractice does not mean they are a bad doctor generally, accidents happen.  

The question is, who is going to pay for the doctor's mistake?  In the vast majority of cases there are only two choices: 1) the doctor and/or hospital via malpractice insurance; or 2) the injured patient who goes on public assistance in order to receive health care.  Besides the obvious problem of the public being forced to take on this additional burden, what incentive is there for the medical profession to provide quality care and eliminate bad doctors, if the public, and not the doctors or the profession are going to absorb the costs associated with the injuries sustained.