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The South Carolina House has passed another "tort reform" measure which is not necessary, most likely unconstitutional, and clearly arbitrary.  The Sun News had an article and it is very interesting what critics and proponents said.  The bill will place an arbitrary cap on how much a jury could award against reckless or intentional conduct.  The measure limits the amount juries could award to deter or punish a business for gross negligence. Punitive damages could be $350,000 or three times compensatory damages, whichever is greater.  The purpose of punitive damages is to deter or punish.

Opponents said multi-million-dollar lawsuit awards are extremely rare in South Carolina.  The executive director of the South Carolina trial lawyers' association said a review of verdicts from courts in the state's three largest counties - Richland, Charleston and Greenville - shows how extraordinary it is for a jury to award punitive amounts at all in this state. Of the 136 personal injury verdicts in those counties in 2007 and 2008, juries awarded punitive damages in seven of them, and only two of those involved more than $7,000, said Mike Hemlepp, executive director of South Carolina Association for Justice. He noted an amount seen as unfair could be decreased either by the trial judge or an appeal.

"Is there any evidence they're saying, 'We're not coming because of tort law?'" asked Rep. Bakari Sellers, D-Denmark. "Tort reform is something people want until it's their family member or friend who gets injured."

House Judiciary Chairman Jim Harrison, R-Columbia, acknowledged those numbers don't indicate a problem.

Rep. Doug Jennings, D-Bennettsville, argued punitive awards are meant to discourage companies and people from blatantly disregarding how their actions may injure others, but the limits mean they won't be discouraged from changing their ways.

Hemlepp said the measure is designed to squash cases from going to court. Civil lawsuits often involve clients who can't pay lawyer fees upfront, which means lawyers won't take frivolous cases. But since lawyers often get paid by taking one-third to 40 percent of the award, capping punitive damages means fewer cases will be taken.

The vote comes five years after the Legislature capped pain-and-suffering awards for medical malpractice lawsuits at $350,000.  Todd Atwater, CEO of the South Carolina Medical Association, said the rates of medical malpractice insurance are going down, as are the number of claims.

 

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The Illinois Supreme Court struck down the state's medical malpractice law today, saying it violates separation of powers by allowing lawmakers to interfere with a judge's ability to reduce verdicts.  The decision shows why judges and juries, not legislators, should decide merits of individual cases.  Illinois’ cap on malpractice damages was today ruled unconstitutional, illustrating why federal efforts to place arbitrary limits on the amount injured patients receive won’t fix America’s broken health care system.  The Illinois Supreme Court held that the legislature violated separation of powers by enacting the damage cap, thus intruding on the authority of judges to assure that jury verdicts conform to the evidence. The ruling was the third time since 1976 that the Illinois court had found a damage cap unconstitutional. 

"This decision is a victory for the families of patients who are killed or seriously injured by preventable medical errors,” said American Association for Justice President Anthony Tarricone. “For years, groups on the federal and state level have used scare tactics to restrict the rights of injured patients. But the facts show time and again that caps or similar one-sided measures do nothing to lower costs, cover the uninsured, or improve access to care. As the health care reform debate continues, the ruling in Illinois shows that judges and juries - not legislators - should decide the merits of each case and appropriate compensation for injured patients.” 

The plaintiff in this case, Abigaile Lebron, was born horribly impaired in October 2005, after the doctors failed to perform routine and necessary tests to treat her troubled pregnancy, which indicated a need for immediate delivery.  When she was finally delivered by Cesarean sections, Abigaile had suffered severe brain injury, cerebral palsy, cognitive mental impairment, and inability to develop normal neurological function.  Under the 2005 statute, any jury verdict in Abigaile’s favor would be capped at $500,000 against physicians found liable and $1 million against the hospital, if held liable.

 

State lawmakers in 2005 passed legislation, which was signed into law by then-Gov. Rod Blagojevich, that established caps on noneconomic damages of $500,000 in cases against doctors and $1 million against hospitals. Illinois followed other states, such as California, that capped damages years ago, none of which lowered insurance premiums for doctors or reduced health care costs.

Justices in the majority, however, said their decision was not made with health care reform efforts in Washington in mind, saying the "Obama administration's health care reform efforts are not the backdrop against which we have decided the constitutionality."

The law came after more than two years of political battle in Springfield between consumer advocates and victims, and insurance companies and lobbyists. Twice before in state history, Illinois lawmakers have adopted caps, and both times the Supreme Court eventually nixed them.

The case before the high court came on appeal from Cook County Circuit Court. In 2007, Cook County Circuit Judge Diane Larsen decided that caps on malpractice awards violated the Illinois Constitution's "separation of powers" clause, in effect ruling that the state Legislature can't interfere with the right of juries and judges to determine fair damages. Larsen's ruling falls in line with a 1997 Illinois Supreme Court decision that overturned a 1995 law implementing caps on personal-injury cases.

 

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The Atlanta Journal constitution wrote a story about a Georgia Judge finding tort reform caps to be unconstitutional.  The cap on monetary awards in a medical malpractice case was found to be unconstitutional.

Superior Court Judge Marvin Arrington wrote in an order that the legislative cap of $350,000 for noneconomic damages such as pain and suffering was unconstitutional because it gave special protections to the medical profession. This meant people injured by doctors had less protection than those injured by others.

"It is absurd to say that if you get injured by a product that the jury can decide your noneconomic damages, but if you get injured by medical malpractice, it can't," said Trent Speckhals, one of the lawyers for Cheon Park, the plaintiff in the case.

The legislature approved the $350,000 cap in 2005 as part of a civil-justice tort reform law over the opposition of the Georgia Trial Lawyers Association and consumer groups.   In 2006, the Georgia Supreme Court stuck down another provision of tort reform when it ruled that defendants couldn't decide in which county their medical-malpractice case was tried.

In his written opinion, Arrington complained that limiting the caps meant that in many cases, large jury awards would be issued only to wealthy people who could point to the loss of large incomes.

"The statute effectively puts substantial limitations on the rights of the poor and middle class to recovery while leaving the right to virtually unlimited recoveries unimpeded for the wealthy," Arrington said. "The disabled manager of a hedge fund, a corporate CEO, an entertainer or such other person whose income is in the tens of millions of dollars has a claim under Georgia law that would dwarf the amount awarded in any case for pain and suffering."

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The West Virginia Supreme court recently discussed how pre-suit notice and expert affidavit creates absurd results. This is very important since South Carolina passed similar legislation 2 years ago.  The article was written by Justin D. Anderson for Daily Mail Capitol Reporter.

Supreme Court Justice Larry Starcher wrote  "I dissent to express my hope that, in the future, the court or the Legislature will recognize the absurd and unconstitutional effects of the (reform) and either strike down or repeal (the reform) in its entirety," in a dissenting opinion last week. 

The lower court found - and the Supreme Court agreed - that the lawsuit should have complied with the requirements of the Medical Professional Liability Act of 1986 because it stems from the administration of health care.  Under the act, plaintiffs have to file pre-lawsuit notices to the defendants and an affidaivt from a qualified expert.

Also, under the act, the plaintiffs' non-economic damages will be capped at $250,000 and $500,000 for other damages.

Starcher called the pre-lawsuit requirements "pointless procedural hoops" because a jury could determine whether or not the sutures were safe.  "To the contrary, application of the (Medical Professional Liability Act) to the instant case clearly demonstrates the absurdity of the (act), and demonstrates why the Legislature should exercise restraint when it attempts to meddle with centuries-old common law principles," Starcher wrote.

He continued, "The only impact the (act) might have is to deprive injured plaintiffs of their rightful damages, by capping the damages that can be recovered at an arbitrary amount that has no relationship to the evidence." 

Chief Justice Robin Jean Davis, in a footnote to the original opinion in this case, declared that the pre-lawsuit requirements violated the state constitution, which says the Supreme Court makes such rules, not the Legislature. The constitution also guarantees access to the courts for all people and justice administered without "sale, denial or delay."

Starcher called the act "cookie-cutter" legislation that has created "absurd conundrums." He said the courts are more responsible and adept at making meaningful changes than the Legislature.

"But the Legislature, when changing the common law, often makes drastic statutory changes in response to real or perceived crises, and often without a clear understanding of the impact those changes might have on individual cases."

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