Arkansas Supreme Court Tosses Out “Tort Reform” Ballot Measure.

The business and medical communities have been busy over the years pushing laws they claim will end a flood of frivolous lawsuits and unleash a wave of economic growth.  Most of these laws have been aimed primarily at medical malpractice cases.  A feature common to all these laws is a cap on the amount of non-economic damages an injured patient or her family can recover.  They may have other provisions as well which further restrict the power of the jury to fully compensate the patient or to limit the amount of money the patient can pay an attorney to represent her.  When the state constitution stands in the way of these laws, as it does in Arizona, they try to get the constitution amended to take away the right of the citizens to be fully compensated when they are injured by medical negligence.  Arkansas is the latest state where these deep pockets have attempted to get rid of constitutional provisions protecting injured persons.  The Arkansas Supreme Court yesterday ruled the ballot measure that would have amended the state constitution to itself be unconstitutional.

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I have to give these interests their due.  They have been incredibly effective in convincing the public that the civil justice system is broken, that juries give away too much money and, on top of that, give it to people who don’t deserve it.  These carefully cultivated attitudes on the part of the public extend to all kinds of cases in which an individual has been harmed by negligence and comes to court seeking compensation but are particularly pronounced when it comes to malpractice cases.  The effect of these attitudes shows up in the number of cases where the jury either returns a verdict for the defendant or awards only a small amount to the injured person.

The business and medical interests are helped by the fact that these cases in which someone is sent home with nothing or very little are never the ones that make the headlines.  Only the rare case in which there has been a large award makes the news.  When the public only hears about large verdicts against doctors or hospitals, they can be forgiven for thinking those verdicts are the norm.

The business and medical interests count on the gullibility of the public.  They count on the public not to do any fact checking and to simply accept the proposition that frivolous lawsuits are flooding the courts and driving doctors out of the profession.  That reliance is critical because, were members of the public to look at the facts, they would see that there is no truth to these claims.

There is no flood of frivolous malpractice lawsuits in Arizona or pretty much any other state.  In a study which appeared in the Journal of the American Medical Association (JAMA), the authors found that between 1992 and 2014, the rate of paid claims against doctors fell by over 50%.  That is a huge drop over a period when the public was being told that claims were rising sharply.

The ballot measure the Arkansas Supreme Court tossed would also have limited the amount of fees an injured patient could pay a lawyer to represent them.  When these limitations are pushed, they are always described as a patient protection measure to prevent patients from being taken advantage of by unscrupulous lawyers.  In fact their real purpose is to further limit the number of people who have cases which are large enough to bring to court by making their cases so unattractive that no qualified lawyer can take them.  Of course there is no limit on the amount a hospital or doctor can pay their lawyers, only a limit on what patients can pay.  When there is a limit on the percentage a lawyer can be paid, the value of the patient’s claim must be that much larger in order for a qualified lawyer to be able to receive a fee that reflects the risks she takes when accepting one of these cases.  If your case is not big enough, no matter how clear the negligence of the doctor or hospital that injured you, you can’t get a lawyer and you can’t get justice.

Kudos to the Arkansas Supreme Court for tossing this ballot measure.   May other supreme courts have the nerve to protect patients in their states and declare their similar laws to be unconstitutional.

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