Tort reform: Unconstitutional!

[GeorgiaDon 340]

Tort reform, in particular caps on malpractice awards, are advocated by many, and especially by conservatives, as a solution to escalating health care costs. Most states have already placed caps on non-economic damages (pain and suffering); California did so in 1975 ($250,000 cap under the Medical Injury Compensation Reform Act, or MICRA). MICRA was then taken as a model by several other states. Unfortunately MICRA failed entirely to prevent the continuous increases in malpractice insurance premiums. The caps do, however, place severe barriers in the way of low-income patients (for example young people at the start of their careers, or retired people), as economic damages are largely assessed in terms of lost earnings.

Now there is a new problem: in Georgia the State Supreme Court today ruled unanimously (7-0!) that malpractice caps are unconstitutional. They ruled that caps infringe on the right to a jury trial (by restricting the ability of the jury to decide the appropriate remedy for the injury), on the separation of powers, and on the right to equal protection. The Illinois Supreme Court ruled the same way last month, and now caps have been ruled unconstitutional in 12 states (and they have been upheld in 16 others, the difference being in the details of each State's constitution). So here is a dilemma for those of you who have been arguing that the 10th Amendment renders the Federal Health Reform bill ("ObamaCare") unconstitutional: Federal tort reform would infringe on State's rights and be in direct conflict with the constitution of many States. If you support "State's Rights", you can't at the same time support Federal imposition of tort reform on the states, or if you do you're being blatantly hypocritical.

What to do?

Don

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Tolerance is the cost we must pay for our adventure in liberty. (Dworkin, 1996)
“Education is not filling a bucket, but lighting a fire.” (Yeats)

[TrophyHusband 0]

specifically, tort reform violates the constitution of certain states. it does not violate the U.S. constitution.

"Your scrotum is quite nice" - Skymama
www.kjandmegan.com

[Lucky... 0]

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specifically, tort reform violates the constitution of certain states. it does not violate the U.S. constitution.

Not yet, but that decision can be used in any trial court and be used as the basis for other decisions at appellate courts all levels, incl the SCOTUS.

[GeorgiaDon 340]

That may well be true. I just think it's interesting that federally mandated caps on compensation will conflict with constitutional rights in many states, which brings up 10th Amendment issues. Personally I think tort reform is needed, but just putting arbitrary caps on compensation that do not take into account harm done is overly simplistic, historically have been shown to have little or no effect on malpractice premiums, and now have been found to be unconstitutional in many states.

Don

_____________________________________
Tolerance is the cost we must pay for our adventure in liberty. (Dworkin, 1996)
“Education is not filling a bucket, but lighting a fire.” (Yeats)

[Andrewwhyte 1]

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specifically, tort reform violates the constitution of certain states. it does not violate the U.S. constitution.

Are federal laws subject to state constitutions? That seems unlikely. Regardless, hopefully this ruling pushes congress towards more general tort reform rather than sectoral ones where they protect the interests of their contributors (notably the AMA and the gun manufacturers) while leaving bad laws of general application to be suffered by individuals and smaller industries.
I am not holding my breath.

[skydiver30960 0]

So the runaway US legal system decided that a movement designed to reign in the runaway legal system is unconstitutional?

Why am I not surprised...


Elvisio "genie is out of the bottle" Rodriguez

[Royd 0]

The problem seems to be, that everyone wants to tie tort reform to healthcare, only.

If an across the board, loser pays, system was enacted, it would eliminate a huge number of nusiance lawsuits...The defendant would hold out, knowing they were in the right.
In the McDonald's hot coffee case, her attorney would have told her,"Lady, there's a reason cups are smaller on one end. That's so that they don't slip out of your hand." End of case.

[billvon 2,471]

>If an across the board, loser pays, system was enacted, it would eliminate a
>huge number of nusiance lawsuits...The defendant would hold out, knowing
>they were in the right.

OK. (Of course, everyone thinks they are in the right.)

>In the McDonald's hot coffee case, her attorney would have told her,"Lady,
> there's a reason cups are smaller on one end. That's so that they don't slip
>out of your hand." End of case.

Right. And all the people suing Skyride would be told the same thing. "It's competition, dudes. That's why it's called capitalism." End of case.

[Lucky... 0]

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The problem seems to be, that everyone wants to tie tort reform to healthcare, only.

If an across the board, loser pays, system was enacted, it would eliminate a huge number of nusiance lawsuits...The defendant would hold out, knowing they were in the right.
In the McDonald's hot coffee case, her attorney would have told her,"Lady, there's a reason cups are smaller on one end. That's so that they don't slip out of your hand." End of case.

Ahhh, another person who knows 1% of that case. You probably didn't even know it was in New Mexico. Comparative negligence; McDonalds knowingly heated coffee 20+ degrees hotter than others with the knowledge that it has and could continue to burn people.

McDonald's settled out 700 like suits before that NM suit. They had a regional manager testify that they knew the coffee was so hot at 185+ degrees that it could cause 3rd degree burns.


BTW, the injured didn't just ruin a blouse, she needed skin grafts and a hospital stay for 8 days....she had never sued anyone before that and she was eldery then. She tried to just get sickdonald's to pay the hospital bill; they offered $900.

80/20 McDonald's fault. See, if you learn teh facts, it becomes more clear.