A recent post to this blog featured the HBO documentary “Hot Coffee” and its underlying issue of tort reform in this country. Some argue that tort reform will solve problems ranging from alleged frivolous lawsuits to stagnant job creation. Those against tort reform, including many attorneys who represent victims and other proponents of victims rights, argue that damages caps and other legislative changes keep victims from filing legitimate suits for medical malpractice injuries, and violate our constitutional right to a jury trial in civil suits.
A West Virginia Supreme Court decision issued in June 2011 struck a blow to those who argue that it is unconstitutional to limit damages a jury can award in suits for medical malpractice injuries. In 2003, the West Virginia Legislature reduced a cap on noneconomic (pain and suffering) damages in West Virginia in such suits from $1 million to $250,000 in most cases. This Supreme Court decision, in a medical malpractice injury case called MacDonald v. City Hospital, was the first test of the new law with the lower cap. The West Virginia Constitution, just like the U.S. Constitution, “preserves” the right of trial by jury in civil cases, and MacDonald argued that his right was violated if the jury could award him no more than $250,000 for his pain and suffering. The West Virginia Supreme Court held that capping MacDonald’s award did not violate his right to a jury trial. MacDonald also argued that the damages cap law violates the “separation of powers” because the legislature is essentially telling the judicial branch what juries can and cannot do in awarding damages. However, the W.Va. Supreme Court disagreed.
Circuit Judge Ronald Wilson wrote a passionate dissent that also addressed the wider issues of judicial independence and equal protection of the laws. Judge Wilson said that the damages cap law is an inexcusable concession by the Legislature to the will of special “pressure groups with selfish interests.” Judge Wilson added that the high court’s unwillingness to protect the peoples’ rights was motivated by the justices’ desire to win expensive elections. Judge Wilson argued that by pleasing one faction of voters (medical professionals who are often sued), the court disregarded its duty to protect the fundamental rights of all West Virginians.
Other courts around the country are weighing in on the damage caps issue. In 2010, the Supreme Court of Illinois found a legislated non-economic damages cap to be unconstitutional because it facially violates the constitutionally guaranteed separation of powers clause. This case, LeBron v. Gottlieb Memorial Hospital, involved catastrophic birth injuries to a child whose parents believed that the lifetime damages of their severely disabled daughter will far exceed the statutory limits on what they could recover for her pain and suffering due to the defendants’ negligence at her birth. For the third time in thirty-one years, the state’s high court found that the Illinois Legislature’s attempt at capping, which this time limited liability of each physician to $500,000 per case, and of each hospital to $1 million per case, is an intrusion on the judicial branch’s powers, and is therefore invalid on its face.
Also in 2010, the statutory attempt of the Georgia State Legislature to cap noneconomic damages at $350,000 per claimant in a medical malpractice suit was declared invalid. The Georgia Supreme Court held that the act violated the state constitution’s guarantee to a trial by jury, a right that the court found has been utilized in medical malpractice suits in Georgia since at least 1798. The trial jury awarded the plaintiff in this case, Nestlehutt v. Atlanta Oculoplastic Surgery, a total of $1,150,000 in noneconomic damages, which would have been reduced by $800,000 if the Supreme Court had not denied the defendants’ appeal for a new trial consistent with the damages cap legislation.
More recently, Louisiana continues to struggle with disputes about the constitutionality of its 36-year-old statutory cap on all damages of $500,000 per medical malpractice award. In August 2011, an appellate court ruled in Oliver v. Magnolia Clinic that the damages cap was unconstitutional. The court intended that the severely disabled minor, whose health issues are due to the nurse practitioner’s failure to test and diagnose a childhood cancer while it was still highly treatable, should be able to collect the $6 million general damages awarded by the trial jury. A September 2011 trial court in a different case agreed with the appellate court’s finding that equal protection and adequate remedy guarantees are violated by the cap, and extended the finding as relevant to all types of healthcare providers.
Currently, Pennsylvania is not one of 30 states with laws limiting damages in medical liability actions; the Pennsylvania Constitution specifically prohibits damages caps. However, in July 2011, Pennsylvania Republican Gov. Tom Corbett signed a bill that changes the way damages payments are divided among multiple defendants. Before the bill, a plaintiff could collect a jury award from whichever defendant(s) could pay, no matter which defendant was “most guilty.” Under the old law, if a truck driver on the job caused an accident, and his employer was also sued for the victim’s pain and suffering from catastrophic injuries, the company might have paid most of the jury award because it had the “deepest pockets,” even if the jury found that the driver’s personal negligence caused the accident. Under this new law, the employer will only pay the percentage of the award equal to the percentage of fault the jury assigns to the company. If the negligent truck driver can’t pay the rest of the victim’s award for his catastrophic injuries, the company will no longer have to “cover” the difference.
In the end, the victim will suffer the consequences of his injuries and he will also suffer the loss of his constitutional right to an effective jury trial. As Judge Wilson said in his MacDonald dissent, “If a person has a right to a jury trial and the jury award is completely taken away, did that person have a court open to him for an injury done to him? Did he have a remedy?”
Consider another example involving a dram shop, or liquor liability lawsuit. Many states, including New Jersey, impose liability on a dram shop (an establishment such as a bar or tavern) that sells alcohol to a visibly intoxicated individual who then leaves the tavern and causes a motor vehicle accident with an innocent plaintiff. Suppose that plaintiff suffers brain injuries and she seeks damages against the drunk driver. Under dram shop law, the plaintiff can also sue the bar that served the alcohol to the drunk driver. However, if the civil suit takes place in a state such as Pennsylvania under a new tort reform law, the plaintiff might not collect the entire jury award. If the noneconomic damages awarded are $100,000, and the driver is found 80% liable while the bar is 20% at fault, the bar would now only pay $20,000 of the damages. If the defendant driver has no means to pay, the injured plaintiff will not get the award amount to which she is entitled for the pain and suffering caused by her catastrophic injuries. This scenario demonstrates Judge Wilson’s concerns about a fair “remedy” for innocent victims under tort reform.
Laws of this type discourage legitimate lawsuits for wrongs such as brain injuries caused by negligence or malpractice. If plaintiffs can’t recover for their injuries because the defendants with the most fault have no money to pay, plaintiffs may not sue at all for fear that legal expenses will be higher than the award they will be able to collect. Should all taxpayers bear the cost of care for negligently injured plaintiffs who can no longer afford to cover their living and medical expenses? Clearly the new law will prevent some deserving plaintiffs from seeking just remedies, and will further burden the taxpayers who foot the bill for social entitlement programs such as Medicaid, Social Security Disability Insurance, and unemployment insurance.
The personal injury attorneys at Messa & Associates support victims of catastrophic injuries including medical malpractice, burn, birth and brain injuries. Accident attorneys at Messa & Associates believe personal injury victims should have the ability to present their cases in court and have a jury determine a reasonable and fair amount to help injured parties recover their damages. We believe that right to a trial by jury guaranteed by our Constitution is a fundamental right worth fighting for in cases of catastrophic personal injuries. For more information on tort reform, please contact us at 1-877-MessaLaw or visit us at www.messalaw.com.
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