• The constitutionality of tort reform

    I’ve written many times about tort reform and how it’s not a means of cost control. It turns out that it’s also not constitutional in some states:

    The Missouri Supreme Court yesterday struck down a state law that caps noneconomic damages in medical malpractice cases at $350,000. It declared that the law infringed on a person’s right to trial by jury, which includes the right to have a jury set damages.

    The ruling, one of several recent setbacks for proponents of tough tort reform measures, illustrates the risk inherent in passing a federal law that would limit what a victorious plaintiff can receive in noneconomic (pain and suffering) damages. Such a law, supported by organized medicine and Congressional Republicans to curb supposedly frivolous suits and extravagant jury awards, theoretically could be overturned by the US Supreme Court.

    The case in question involved a baby who evidently was delivered by cesarean section too late, resulting in significant damage. His mother was awarded about$3.4 million in medical damages and about$1.5 million in non-economic damages. The law reduced that latter amount to $350,000. She sued that this was a infringement on the right of juries to decide matters like these.  She won.

    Moreover, Missouri isn’t alone:

    Before yesterday’s ruling, Missouri was one of roughly 2 dozen states with laws that cap noneconomic damages in malpractice suits at various levels, according to a tally kept by the National Conference of State Legislatures. (A few other states limit punitive damages or total damages of any kind.) Some of these laws have survived constitutional challenges, as was the case in Maryland. In contrast, cap laws in Alabama, New Hampshire, Oregon, Washington, and, most recently, Illinois and Georgia have been tossed into the unconstitutional trash basket.

    Not to beat a dead horse, but the law wasn’t so good at reducing malpractice premiums anyway, which is what tort reform is supposed to do. Missouri’s malpractice premiums went up faster than neighboring Iowa’s did after it passed the law. Iowa, of course, has no such cap.

    • Tort Reform has never been brought before the SC, but even if it doesn’t violate state constitutions, it probably violates the US Constitution, specifically the 7th Amendment. Going one more step, if the SCOTUS ever got the “right case,” it may have to find if these state tort reform laws violate the US Constitution themselves, making them unconstitutional through the incorporation doctrine of the 14th Amendment.

      Anyway, good work on the blog and look forward to reading more!

    • Agree that tort reform will not necessarily reduce malpractice premiums (though given that there are so many other factors like demographics, insurance company reserves, pricing power, etc. it is hard to actually make the conclusion that it did or did not based on premium prices alone).

      However, the premise that the sole societal benefit of tort reform laws is its impact on malpractice premiums is highly flawed (though attractive to both sides because of its simplicity). I would argue that the main reason we should have strict caps is to discourage defensive medicine. After all, the fear of torts (not necessarily their monetary impact) is a big driver of costs, both in the realm of testing (CT head scans in the ED for a headache for instance) and administrative costs (our admin support is much higher than in Europe for both legal and billing reasons). The studies in this area are still not conclusive yet but if you do hospital operations work, it is striking just how many protocols, staffing and testing decisions are driven by this fear.

      In any case, no other medical system in the world (private, public or anywhere in between) has close to the legal and financial burden that our tort system imposes and reining it in seems like low hanging fruit in the drive for reform. Arguing that it is just 1% (or some low amount) of costs ignores the fact that any single reform is unlikely to budge the needle much but if we do many of them (incl. tort reform), we are likely to have impact….

      • It’s not the sole reason. It’s the means by which the other effects “trickle down”. Read my posts on the subject.

    • And Supreme Court justices are attorneys.

      That situation alone is like having a panel of doctors decide what insurance companies have to pay for, no questions asked.

    • Every time I have a discussion about cost reduction and health care reform with physicians, inevitably someone states with extreme confidence that tort reform will fix everything and that trial lawyers are just preventing it from being implemented. I didn’t have an opinion before, but your articles on the subject are really fantastic at putting those claims into context. Maybe worth an FAQ entry?

      Also, @Ron, actually being on the supreme court is kind of a full-time gig. Not to mention that only 4 out of 9 were ever in private practice, and all spent more time as professors and/or in public service. All of them have their own personal ideologies that they are in a unique position to see implemented in the world. I doubt they’re too worried about lining the pockets of ambulance chasers.

      • Hey, they have their friends to cover for.
        By the way, did you read the article in the Missouri constitution that they based their decision on? I did. One line. And to come up with their decision based on that one line means they can also pull rabbits out of hats.

    • The main problem with malpractice law is not the amount of damages, its the fact that the court is a farce.

      Every state in teh country says you have to break a “standard” of care in order to be guilty of malpractice/negligence.

      Yet, how does the court determine if a “standard” was broken? They use a hired gun expert whore to get on the stand and lie about it. Thats how.

      The BEST case scenario is you have 2 competing experts, both of whom are lying on the stand about a “standard” of care.

      Individuals dont set standards, organizations do. So why does the court use tremendously biased hired gun expert whores to decide these cases? It is absolutely absurd.

      Malpractice cases should be decided by expert organizations. In this case, the ACOG and ACGME should have decided whether a “standard” was broken or not. Instead what we have are experts with tremendous financial biases who are testifying in court so they can get paid.

      John Edwards had to go thru 33 experts once in a case to find someone who would testify that a “standard” was broken. Did the jury hear about the other 32 who disagreed? Of course not. So who set the “standard” here? The 32 experts or the 1 expert?

      • The court’s decision wasn’t about expert testimony or the “fairness” of the system. It was about limits place on rewards.
        Maybe you knew that and was venting about the unfairness of the system. I agree, there’s much to do to improve and balance the system better, but this decision was about a different issue.

        Still, it just adds to the outhouse odor.

    • I would like to say that I think that tort reform is treating the symptom not the cause (no pun intended). One way to treat the root cause would be better public education.

      This may seem grandiose but realistically why is it that someone gets millions of dollars in damages for things that are sometimes frivolous? Generally when people don’t know much about medicine or science in general they are not interested in long complicated explanations. The result is people doing the best they can and trying to err on the side of plaintiff, which we typically think of as “the little guy” (not always the case of course).

      As far as a viable option goes, we need to see government investment in continuing education infrastructure and funding. When someone is not out for a 4 year degree it tends to cut any unnecessary fat from a curriculum. If we just had free classes for average people on “civil law for the layperson” or “navigating the Untied States healthcare system” we could give a little social worker expertise to a large and varied demographic. That in itself would to some extent reform the current insanity that often accompanies lawsuits. People would not be so quick to jump into a lawsuit and jurors would not be so easily manipulated.

      • Seems far simpler to change the system so attorneys can’t easily file those frivilous claims in the first place. And also make the patients responsible for costs on both sides if they lose. People on this blog seem to favor the European model for health care, well, then why not also favor their system of tort justice also?