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David Bernstein
David Bernstein
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Should Conservatives Support Tort Reform?

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Conservatives and Tort Reform?
Tort reform. Conservatives. They are often considered synonymous with one another. According to Fred Thompson (attorney and former U.S. Senator), however, conservatives should reexamine their ideology. Thompson thinks the civil justice system is fine just the way it is, without caps on pain and suffering and other restrictions.

Conservativism
Thompson had this to say about whether tort reform is conservative, “To me, conservatism shows due respect for a civil justice system that is rooted in the U.S. Constitution and is the greatest form of private regulation ever created by society. Conservatism is individual responsibility and accountability for damages caused, even unintentionally. It’s about government closest to the people and equal justice with no special rules for anybody. It’s also about respect for the common-law principle of right to trial by jury in civil cases that was incorporated into the Seventh Amendment to the Constitution.”

Problems with Cap Limits
The problem with putting a cap on damages is that each case is different. Caps on damages limit the ability of the jury to examine the specific facts and circumstances of a case. With cap limits, the jury can award only so much compensation, regardless of the severity of a case. Ironically, if a cap for pain and suffering is put in place, insurance companies will be less likely to settle large cases since their exposure will be limited.

Reasonable and Unreasonable Adjustments
Thompson isn’t opposed to all adjustments to tort law. But those adjustments need to be reasonable. For example, in 2008, Tennessee’s legislature passed a law requiring plaintiffs to get a written statement from a medical professional saying that the lawsuit had merit, thereby reducing medical-malpractice suits. He thought that law was reasonable. However, he would not find it reasonable for the legislature to impose a dollar limit in cases where damages and negligence have already been proven.

The Jury is Capable
Thompson also expressed his confidence that the jury is capable of coming to a reasonable conclusion. He said:

“As someone who practiced in the courts of Tennessee for almost 30 years, I believe that a Tennessee jury of average citizens, after hearing all the facts, under the guidance of an impartial judge and limited by the constraints of our appellate courts, is more likely to render justice in a particular case than would one-size-fits-all rules imposed by government, either state or federal.”

Recent Developments in Oklahoma
Oklahoma, however, does not appear to be heeding Thompson’s advice. In Oklahoma, the Legislature is controlled by Republicans and the new Governor is Republican. It is not surprising then, since most Republicans apparently don’t share Thompson’s sentiment, that a Senate bill was advanced this past week which would limit non-economic damages (e.g., pain and suffering) in lawsuits to $250,000.

Senate Bill 863 by Sen. Anthony Sykes, R-Moore, heads to the Senate floor, along with four other measures by Sykes that advanced out of the Senate Judiciary Committee.

  • SB 862 would eliminate joint and several liability, protecting defendants from judgments that exceed the degree to which they are at fault.
  • SB 864 would require that compensation from sources independent of a defendant, such as a plaintiff’s insurance, be submitted as evidence to the jury and subtracted from the amount of damages recovered from the defendant.
  • SB 865 would require that juries get accurate information about how much in taxes the plaintiff would have to pay based on the award, if taxes are due.
  • SB 866 would allow for the periodic payment of future damages rather than requiring lump-sum awards.

Predictably, Republicans were in favor of the bill. Democrats were not.

Here’s what some of the Republican supporters had to say:

  • "These bills protect Oklahomans, doctors and our businesses from frivolous lawsuits," Sykes said.
  • Gov. Mary Fallin said in her State of the State address to lawmakers on Monday that she supports the $250,000 cap on pain and suffering damages.

Here’s how Democrats and others opposed to the bill reacted:

  • "If a drunk, texting truck driver kills a man who had purchased life insurance, the bad actor gets credit for all the life insurance," said Sen. Charlie Laster, D-Shawnee.
  • Sen. Richard Lerblance, D-Hartshorne, said that by putting a cap on pain and suffering damages, the Legislature is supplanting its will to that of a jury.
  • Sandy Chow said his wife was diagnosed with cervical cancer after tests were improperly administered and read. He said his wife has undergone a lot of pain and suffering as she tries to recover. "I don’t know how politicians come up with an arbitrary amount," Chow said.

Conclusion
While it may be true that most conservatives believe in “tort reform,” conservatives might want to reconsider. Oklahoma should be no exception and the Legislature and Governor need look no further than the views of a fellow Republican, former presidential candidate Fred Thompson.

The current civil justice system has worked well for a long time. There is the old saying, “if it ain’t broke, don’t fix it.” That quote fits aptly here. The current system allows for a jury to analyze particular facts on a case-by-case basis without being constrained by dollar limits.

Will the jury always reach right the result? In Oklahoma, there is no evidence of any runaway juries. In fact, Oklahoma is so conservative, recent jury verdicts show the opposite to be true. However, small verdicts and defense verdicts are rarely publicized. If a runaway jury verdict ever did happen, the appeals court is there to correct the situation.

The fact of the matter is some cases (e.g., major burn cases, brain injury cases, quadriplegia cases) do warrant substantial compensation. These cases happen very rarely.

The civil justice system in Oklahoma has served us effectively without cap limits. There is no reason to change that system now other than to make severely injured people rely on the taxpayers to help them survive when an insurance company that is in the business of taking risks could be paying the full value of the claim.

5 Comments

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  1. Hope Wade says:
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    David:
    You are so on target with your comments! Although I am a registered Republican, and am certainly conservative, I STRONGLY believe “tort reform” is WRONG on so many levels…
    As a Registered Nurse for over 30 years, that reads medical records on a daily basis…I see first hand, as you do, the NEGLIGENCE that occurs. Tears stream down my cheeks as I shake my head and wonder how in the Hell could this have happened?? I truly believe that if most Oklahomans realized they are giving up their RIGHTS with this fiasco labeled “tort reform” they would re-think the issue. The caps only come into play when NEGLIGENCE has been determined. They hurt the young, the old, the AVERAGE citizen. They tip the scales of justice in favor of the powerful (aka those with money). THIS will HURT our wonderful state. As a nurse, I am an advocate for the patient, for the profession and for the TRUTH…. And, if the truth is negligence, I trust a jury to determine the amount of compensation….NOT the government. Sincerely, Hope H. Wade, RN,BS,CLCP

  2. Doug Stall says:
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    I am disappointed with the overreaching legislation being proposed by my fellow conservatives, which is designed to limit an injured person’s right to recover. This “big government knows better” attitude is precisely the criticism conservatives level at our more liberal friends; yet Republicans are now doing the same thing in the name of “tort reform.” I am convinced that a jury listening to ALL the evidence is in a far better position to know what is right and what is fair than politicians and their lobbyists. I say, let the jury decide.

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    I agree with former Sen. Thompson in that conservatives should not support tort reform. As a moderate conservative myself, I find the thought of the legislature encroaching on the fundamental function of the judicial branch repugnant. A trial by jury is a constitutional right in civil cases and a jury is in the best position to determine what is a just verdict. They are the ones who hear the evidence and apply the law to that evidence. Legislative tort reform seeks to limit compensation and place arbitrary figures on citizens’ cases without hearing any evidence whatsoever. We hear the “frivolous lawsuits” constantly but we rarely hear the whole side of the story to these cases; only a jury hears that and thus they are in the best position to judge the case. We also rarely hear about the numerous safeguards to already in place in the legal system to prevent those types of suits. Tort reform benefits no one but the insurance companies who are pushing for it.

  4. Terrill Corley says:
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    “Tort Reform” means if a 19 year old is rendered quadraplegic by the negligence of a doped up truck driver, can’t move a muscle below his neck, must have someone move him everytime he needs to be moved for the remainder of his life,
    is totally and completely dependent on someone else (more often than not a loving and caring nursing home—not) and Governor Fallin limits him to $250,000. I won’t call it a joke, its much too serious.

  5. Larry says:
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    Once again, the lawyers post the equivalent of very clever lies, repeatedly, on this site, to attempt to sway the argument.

    No, Terrill Corley, the $250,000 cap does not mean anything of the sort. The $250,000 cap is for non-economic damages. Medical and care costs are not capped. But you knew that, you were just trying to lie obtusely.

    No, Mike Rothrock, a jury is NOT in the best position to decide a case. A jury is made up of non-medical personnel. They know nothing about how medical care actually occurs. Lawyers know this, by the way, which is why they do not allow anyone but lawyers on the Bar Disciplinary Committees – after all, a normal person has no idea that lying in court is perfectly acceptable for a lawyer. A physician is supposed to have a jury of his peers. 3 schoolteachers, a bus driver, two unemployed bricklayers, 4 stay-at-home moms who watch Oprah and two retired government employees are not “peers”.

    And dear “Hope”, with the streaming tears – baloney, baloney, baloney. Caps on NON-ECONOMIC DAMAGES hurt no one but tort lawyers. No one.

    And for all of you – so all the states where tort reform has passed (Texas, California, Indiana, and on and on)… those poor, poor people are preyed upon by conniving doctors all day and night?

    BS. Complete, utter BS. This is entirely, totally, and completely, about the lawyers seeing a part of their gravy train come to an end.

    And it will.

    NOTE FROM DAVID BERNSTEIN: The comment above from Larry shows that folks who hate lawyers will do whatever they can to stop lawyers from making a fee regardless of the harm caused to people with catastrophic injuries. In other words, a person who becomes a quad and has no quality of life for 40 years due to a truck driver working too many hours and hitting her at 70 mph will be restricted to $250,000 for her pain and suffering even though there may be insurance to pay for pain and suffering of $5,000,000 with the trucking company. The insurance company for the trucking company saves $4,750,000 with the cap and the person who is a quad is penalized in an effort to stop the attorney from making a fee. Does that sound like the conservative principle of taking responsibility for your actions?