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I have long argued that Republicans who support "less government" are on the wrong side of debates regarding separation of powers. If we support less government, do we want the government in our bedrooms, regulating abortion? To some, this is a religious, moral issue; I get that, but I, for one, do not want this important issue decided by a legislator; I prefer the constitution interpreted by the judiciary.

As to issues of civil justice, the debate has centered around so-called "tort reform". The issues are similar, though: Do we want the legislature in our courtroom regulating verdicts? The simple answer is: Of course not! I don’t want the legislature deciding what my pain and suffering, my life, my child or family member’s life, my injuries are worth. I want those issues decided by a judge or jury of my peers.

As the senate debates reforms to our health care system, most of you know that many states have already instituted some version of so-called liability reform. These reforms have almost always taken the approach of capping personal injury recoveries of seriously injured people. I have never understood this type of reform; the reason the U.S. Chamber and its ilk have proposed "tort reform" is, supposedly, to stop what they call "lawsuit abuse" or "frivolous lawsuits". But why would something that is "frivolous" need a cap? The answer, of course, is that the Chamber and its insurance industry partners want injured people to receive less in serious injury cases, they are not really interested in stopping frivolous ones. Having said that, the other issue with capped recovery ‘tort reform’ is that it violates the separation of powers guaranteed in our constitution.

Yesterday, Crain’s Chicago Business reported that the Illinois Supreme Court has struck down that state’s caps on recovery in medical malpractice cases. Why, you ask? Because the 4 year old statute that caps pain and suffering is unconstitutional; it violates the Illinois Constitution’s (and the federal one, too) "separation of powers" clause. How? Because it allows legislators to substitute their version of justice for that of a judge or jury. It interferes with the right of judges and juries to determine damages; it violates the separation of powers.

No doubt this ruling will anger insurance companies and the medical community. But, they have been lying to you about so-called tort reform; many of you have been buying the lies. Here is a quote in the article from Harold Jensen, chairman ISMIE Mutual Insurance Co., a huge Chicago-based malpractice insurance carrier:

[Since the law took hold] “patient access to health care has expanded, frivolous lawsuits have ebbed and malpractice rates have leveled off or decreased for many doctors…this is practical proof the law is working.”

What’s wrong with this picture? Again, how does capping recoveries in serious injury cases (because only serious cases would result in verdict numbers effected by the cap) stop or "ebb" the filing of frivolous cases? Mr. Jensen and his ilk are lying to you. Why? because insurance companies like taking doctors’ (and your) money in premiums, but do not like paying the money out in benefits. If they can cap recoveries in serious cases, they will pay out less in benefits. And, who picks up the tab for the money they save? The taxpayer, that’s who! A catastrophically injured person who collects an inadequate settlement that he/she must support him/herself with will have to get medical care from the medicare or medicaid system and financial support from some type of government assistance. Why would conservatives (those who favor limited government and less social programs) support such a system that favors public assistance rather than appropriate private compensation?

Lawsuit Financial has been arguing against tort reform and recovery caps for years. Our pro-justice lawsuit funding company has constantly gone on record as declaring this approach to be a violation of our constitution. It is gratifying to see that at least one state’s Supreme Court has seen fit to agree. Hopefully, more will follow suit. Our precious civil rights are at stake; they should not be legislated away by politicians who’s hands are in the pockets of big business and pro-insurance lobbyists. That is Lawsuit Financial’s view; what do you think?


  1. Gravatar for Steve Lombardi

    I intended to write about this but you've done such a good job I see nothing else to say. Well done Mark.

  2. Gravatar for John Hopkins


    Excellent article.

    The tort reformers continue with talking points that are simply untrue.

    I have yet to debate one who can present me with an objective study that demonstrates tort reform measures accomplish what they claim.

    Thanks for this post.

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