Tort reform advocates support arbitrarily capping damages in medical malpractice lawsuits in a misguided effort to curb “frivolous” lawsuits. However, the tort reform platform is filled with gaps in logic and is based on an affront to the U.S. Constitution and our nation’s history.
If you support a cap on damages, then you’re supporting the legislative branch invading the providence of the judicial branch (i.e. determining the damages awarded in a lawsuit) and to a jury’s ultimate determination in a case. Such a position ignores our nation’s history and the fundamental principal of giving a jury the freedom to determine the compensation available to a plaintiff. For example, our jury trial system has its origins in the Magna Carta and the colonists declared independence from England in part because King George III wanted to control juries.
The Constitution was successfully ratified by promising protection, within the Bill of Rights, for civil jury trials. Along with protection in the Bill of Rights, many state Constitutions expressly protect the right to trial by jury. In fact, the right was frequently referred to as “sacred.”
Despite this long and rich history of protecting and promoting the right to trial by jury, the tort reform movement turns a blind eye to this history and advocates for the legislature to usurp the judiciary by setting damage caps by statute. The result? Let’s say a jury awards an injured plaintiff $5 million in noneconomic damages. Well, in Virginia, the damage cap is $2 million for noneconomic damages. That means the jury’s determination, after hearing both sides and reaching an amount of damages that the jury deemed reasonable to award the plaintiff, will be disregarded and the statutory cap will be enforced. North Carolina, unfortunately, passed a cap on noneconomic damages to only $500,000. That may sound like a lot of money, but if you’re a victim who suffers a permanent, life-altering medical malpractice injury, $500,000 may only be enough a few years of medical care.
Here's a video showing the inherent hypocrisy in some of the tort reform advocates and how the table can turn if you or a loved one is the victim of medical malpractice:
What’s even more frustrating is that these damage caps are advocated for despite the mounting empirical evidence that damage caps do virtually nothing to reduce health care costs. For example, an independent study from the Congressional Budget Officeshowed that implementing tort reform policies like capping damages would reduce health care costs by a microscopic 0.5 percent.
Another fact is that our courts are not overrun with “frivolous” lawsuits and doctors are not going bankrupt because of large jury verdicts. In fact, in 2011, payouts to victims of medical malpractice were at the lowest levels…ever. Yes, you read that correctly. The lowest ever.
So what does all this mean? First and foremost, we should not implement harsh tort reform policies that strip individuals of their sacred right to trial by jury. Second, we should not hinder a jury’s ability to actually determine the outcome of a case by settingarbitrary and misguided damage caps. Third, if we want to truly address rising healthcare costs, directing our attention at the judicial branch is imprudent. Instead, we should direct our attention on the flawed fee-for-service health care model and reducing the number of individuals who develop preventable chronic diseases like diabetes and heart disease.