Posted by John Ager on 12 June 2017.
Medical malpractice cases are fertile ground for tort reformers. States around the country have enacted legislation targeted at the specious claim medical malpractice lawsuits are causing skyrocketing medical malpractice insurance costs for doctors and out of control health care costs for insurance companies and consumers. The legislative responses have been many from creating a heightened burden of proof in medical malpractice lawsuits, increasing negligence requirements, and imposing caps on non-economic damages. Non-economic damages caps often prevent an injured person from being fully compensated for pain, suffering and loss of enjoyment of life when they are harmed by medical negligence, regardless of how seriously they have been harmed. The loss of a leg may be worth the same as the loss of a toe.
Despite heath care industry research which demonstrates tort reform does nothing to lower malpractice premiums or health care costs, the Arizona legislature, not surprisingly has used many of these tools and continues to look for ways to create obstacles for plaintiffs in medical malpractice cases. But it has not imposed caps, much as it might want to do so. Why? Fortunately for Arizona citizens, damages caps are prohibited by Article 2, § 31 of the Arizona Constitution which provides, “No law shall be enacted in this state limiting the amount of damages to be recovered for causing the death or injury of any person.”
Some states without express constitutional protections like Arizona has have found caps to be unconstitutional on other grounds. A decision by the Florida Supreme Court is the most recent example. There, the majority disputed the existence of a malpractice crisis which the legislature use to justify the caps. The Court went on to hold that arbitrary and invidious discrimination between victims of medical malpractice and all other personal injury victims, to whom caps did not apply, violated the equal protection clause of the United States Constitution. That clause says all people must be treated equally. The Court went on to find, much like the current research, that there was no relationship between caps and alleviating what the legislators perceived as a malpractice crisis.
The Court was narrowly split, however, and not all state courts decided have found caps to be unconstitutional in the same way as the Florida court. Of course, once a caps loving legislator has been touched by medical malpractice, you’ll hear a change of tune. And, while tort reform will continue to be a driving force in our country for quite some time, whether facts will play role in the public policy behind it remains to be seen.