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PRO Tort reform is again a very hot topic. The Missouri General Assembly has recently been considering House Bill 273, which would reform some of Missouri tort laws. Similar issues were recently subject of hearings by the U.S. Senate Judiciary Committee. Why the sudden interest in tort reform? One reason is that lawsuits and the attendant increases in liability insurance are causing a near rebellion in physician ranks and are pushing up the cost of health care. One particular problem is who pays attorneys' fees. In most cases in this country, each party generally must pay his or her own attorneys' fees regardless of their success or failure on the merits of a lawsuit. As a result, many cases are settled because it is often cheaper to settle a case rather than to incur the cost of defending the case. Two particular abuses that need to be addressed by tort reform are the potential abuse of class action lawsuits and forum shopping. The former cases often involve people who do not even know that they have been injured or for whom the injury is so insignificant that no one would ever consider pursuing a lawsuit. The latter involves an effort to bring a case in a jurisdiction that has historically had larger jury awards--like Jackson County--even though another venue has a far greater connection to the case. Another rule that needs to be tightened is that involving frivolous lawsuits. Before a lawsuit is filed the aggrieved party should have to have some proof, supported by an appropriate expert, that the defendant is really the cause of their injury. There are admittedly worthy suits brought against unworthy healthcare providers, but all too often unworthy suits are brought against worthy providers. When physicians and hospitals are punished, we need to remember that it is we the consumers who are the ones who will pay the price. |
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CON One of the hottest subjects in the country today is that of tort reform. President Bush, many Repub-licans and a large number of physicians would argue that physicians are being driven out of practice by the high cost of insurance. Insurance companies are insisting that costly premiums are necessitated by the high cost of paying for and defending medical malpractice claims. When we speak of proposed tort reform we are generally not talking about economic damage. Thus, cost for future medical and lost wages are NOT being capped. However, it is not economic damages where the proposed limitations lie. Non-economic damages include pain and suffering and mental anguish. As part of the proposed limitations, attorneys fees are also being reviewed. Today, in the state of Missouri the cap on non-economic damages is $557,000. Neighboring Kansas has a non-economic damage cap of $250,000. many proponents of tort reform would like to see a national cap on non-economic damages at $250,000. At first blush one might believe that the cap is an equitable solution to the problem of rising insurance premiums. However, posit the case of Jesica Santillan now making national headlines. Jesica is the 17 year-old girl who underwent a botched heart and lung transplant. After a few weeks Jesica obtained a second heart and lung transplant and was soon after declared brain dead. There are additional questions now as to whether the hospital was correct in removing the life support system, as the family appears to have wanted a second opinion. In this case, who would believe that $250,000 or $557,000 would be ample reward for non-economic damages? It seems all to easy to suggest that insurance premiums would miraculously fall if non-economic damages were capped. However, maybe we should take a more detailed look at why states like California, which have practiced tort reform, still see premiums rise. Perhaps we should take a closer look at the investments insurance companies are making with these premiums. Furthermore, our constitution allows that juries make the decision with regard to verdicts and rewards not the attorneys. |
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