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Question: Would you give up a fundamental civil right in order to protect negligent doctors and insurance companies?

Seems like a simple question with a simple answer… No.

But this question will garner much discussion today in the Missouri Senate’s Small Business, Insurance and Industry Committee.

The committee will consider whether or not to re-institute unconstitutional damages caps.  And there’s a reason this bill – SB 589 – will be heard by the Insurance and Industry Committee – that’s who it is designed to protect.  The bill sacrifices the fundamental right to jury trial in order to protect negligent doctors and their insurance companies.

What if the the 1st Amendment right to free speech was sacrificed to protect negligent doctors and insurance companies?  Would you answer yes or no?

What if the 1st Amendment right to freedom of religion was sacrificed to protect negligent doctors and insurance companies?  Yes or no?

What if the 2nd Amendment right to bear arms was sacrificed to protect negligent doctors and insurance companies?  Yes or no?

What if the 5th Amendment right to due process was sacrificed to protect negligent doctors and insurance companies?  Yes or no?

What Does the Constitution Say?

The 7th Amendment to the US Constitution guarantees that “the right of trial by jury shall be preserved….”

The Missouri Constitution guarantees “[t]hat the right of trial by jury as heretofore enjoyed shall remain inviolate….”  The “as heretofore enjoyed” phrase refers to the common law.  The common law system refers to those areas of the law developed through decisions of courts and other tribunals as opposed to laws issued by statute.  Many statutes, in fact, codify the common law.

A number of actions, including actions for negligence, developed under the common law.  Jury trials on such claims have been guaranteed under both the US and Missouri Constitutions, with Missouri going so far as to declare this right “inviolate”.  According to Webster’s Dictionary, the term “inviolate” means “not harmed or changed”.

So, putting it all together:  The right to jury trial as enjoyed under the common law shall not be harmed or changed.  That’s what the constitution says.

What would SB 589 do?

SB 589 would unquestionably “harm or change” the right to jury trial in Missouri.

You see, in order to get around the Constitutional protections, SB 589 would attempt to legislatively erase this history of common law as if it did not exist.

2.  The general assembly expressly excludes from this section the common law of England as it relates to claims arising out of the rendering of or failure to render health care services by a health care provider, it being the intent of the general assembly to replace those claims with statutory causes of action.

SB 589

The Missouri legislature is trying to an end-run around the Constitution.

Doubt me?  Here’s an easy way to prove it:  Ask any Senator supporting this bill if they would offer an amendment to apply this language to (a) the freedom of speech; (b) the freedom of religion; and/or (c) the right to bear arms.

The 7th Amendment is no different and no less important than the 1st Amendment, 2nd Amendment, or any other amendment.  A fundamental right is a fundamental right.

SB 589 Protects Negligent Doctors and Insurance Companies

SB 589 doesn’t protect you and me.  It doesn’t prevent “frivolous” lawsuits.  It doesn’t make health care better.  It doesn’t keep doctors in our state.

This bill does one thing:  It protect insurance companies and negligent doctors who injure innocent people.

Let’s examine the arguments.

(1) Damage Caps Do Not Prevent Frivolous Lawsuits

Supporters of the bill claim it will prevent frivolous lawsuits.

AMedNews Tweet

It won’t.  It can’t.  To say otherwise is not just wrong, it’s a pants-on-fire lie.

This bill doesn’t protect good doctors, it protects bad ones.

By definition, damages caps can only apply to cases with merit and which the plaintiff not only wins, but has suffered and is awarded substantial non-economic damages.

In order for unconstitutional damages caps, the following must occur:

(1) The jury must find the doctor, hospital, or other health care provider was liable for the injury (an actual cause-in-fact of the injury); and

(2) The jury must find that the injured victim suffered some non-economic loss or injury (an incomplete list of non-economic damages includes pain, suffering, mental anguish, disfigurement, loss of consortium, loss of care, loss of comfort, loss of support, lost enjoyment of life, etc.) that was caused by No. (1); and

(3) The jury must find that the value of the injured victim’s non-economic loss is greater than $350,000 over the victim’s lifetime.

These caps have absolutely nothing to do with frivolous lawsuits and it is disingenuous and outright misleading for anyone to suggest otherwise.

While these caps don’t restrict frivolous lawsuits, they do fundamentally restrict valid lawsuits and, instead of protecting innocent victims, these caps protect negligent doctors and hospitals from being held accountable and accepting responsibility for the damage they cause.  One legislator, Rep. Eric Burlison, admitted as much in a Springfield News-Leader article, when he said that he saw “caps as a way of keeping the number of claims down.”

(2) Damage Caps Do Not Reduce Defensive Medicine or Lower Health Care Costs

The New England Journal of Medicine concluded that arbitrary damages caps do not lower health care costs, may result in more negative outcomes as doctors would not be held accountable for the full cost of medical errors.

Strategies to control costs associated with medical malpractice and defensive medicine must be responsible and targeted. These strategies must not impose arbitrary caps on damages for patients who are injured as a result of malpractice. According to the Congressional Budget Office, arbitrary caps on damages would reduce national health spending by only 0.5%. But although such caps would have a barely measurable effect on costs, they might adversely affect health outcomes.

– A Systematic Approach to Containing Health Care SpendingThe New England Journal of Medicine

As the NEJM alluded, damage caps actually threaten to make the malpractice problem worse. Shirley Svorny, of the conservative Cato Institute (founded by in part by the Koch brothers, Charles and David Koch), has written, “[m]uch of the protection consumers have against irresponsible and negligent behavior on the part of health care providers hinges on oversight and incentives created by the medical professional liability insurance industry.” Thus, she concludes, damage caps “could result in more cases of negligence and substandard care.”

(3) Damage Caps Do Not Affect Doctor Retention

Supporters of SB 589 suggest that, without the unconstitutional damage caps, doctors will flee the state.  Again, this kind of statement is not just wrong, it’s a pants-on-fire lie.

With or without damage caps, doctors have never fled Missouri.

Statistics from the Missouri State Board of Registration for the Healing Arts:

Missouri Doctor Registrations Data: Mo. Bd. Reg. for Healing Arts
Missouri Doctor Registrations
Data: Mo. Bd. Reg. for Healing Arts

There never a mass exodus.  In fact, in-state physician renewals actually jumped 4.23% from the previous reporting period in 2004 – just before the “boiling point” imagined by tort reform supporters and before the unconstitutional damage caps were enacted in the fall of 2005.

The broader numbers also show there was no exodus of doctors before tort reform and no mass return of doctors once unconstitutional restrictions were enacted.  This is a true fact based on the per capita number of doctors and also for the per capita number of doctors in so-called “high risk” specialties that include neurosurgery and Ob-Gyn.

Doctor-Patient Ratio MO - Vidmar  Doctor-Patient Ratio MO - High Risk - Vidmar

Not only have doctors not fled Missouri, they haven’t fled anywhere else either.

“Before Texas adopted tort reform in 2003, proponents claimed that physicians were deserting Texas in droves.  After tort reform was enacted, proponents claimed there had been a dramatic increase in physicians moving to Texas due to the improved liability climate.  We find no evidence to support either claim.”

– Does Tort Reform Affect Physician Supply?  Evidence from Texas

Even staunch tort reform advocate Ted Frank of the Manhattan Institute agreed that the Texas study “substantially undermines the empirical case for the conventional wisdom that Texas’ 2003 reforms against medical malpractice lawsuits attracted more doctors to Texas.”  Frank agreed the report is so damning he is “going to stop claiming that Texas tort reform increased doctor supply without better data demonstrating that.”

One medical malpractice insurance company produced an info-graphic that demonstrated unequivocally that there is no medical malpractice crisis.  It showed that nearly half of all medical malpractice payouts came from only 5 states (Florida, New Jersey, California, Pennsylvania, and New York).  It also showed that overall medical malpractice payments have been declining steadily since 2003.  The data from the insurance company also showed that “runaway juries” or “excessive” jury awards are not part of any alleged “crisis”.  Only 5% of all medical malpractice awards in 2012 resulted from a verdict at trial.  More than 90% of all malpractice payments were made voluntarily by the defendant doctor, hospital, or health care provider by way of settlement.

(4) Verdicts Do Not “Skyrocket” Without Damage Caps

The average non-economic verdict paid out before the unconstitutional damage caps were put into effect was $314,000 and has not changed significantly under that law.

Some claim without unconstitutional damage caps, “there is no limit on what a jury can award a plaintiff”.  It’s not true.

There is a limit.  It’s called evidence.

The jury is constitutionally constrained by the evidence.  In addition to the jury, the trial judge stands as a gatekeeper to ensure the jury is constrained by the evidence.  In addition to the jury and the judge, the Court of Appeals panel of three judges stand as a gatekeeper to ensure the jury and trial court are constrained by the evidence.  In addition to the jury, the trial judge and the Court of Appeals panel, the Court of Appeals en banc stands as a gatekeeper to ensure the jury, trial court, and appellate panel are constrained by the evidence.  In addition to the jury, the trial judge, the Appeal panel, and the Appeals Court en banc, the Supreme Court stands as a gatekeeper to ensure that everyone is constrained by the evidence.

If the jury, trial judge, Appellate panel, Appellate Court en banc, and the Supreme Court all agree… then maybe they got it right.

There are no fewer than five levels of limits and protections to properly constrain damages in medical malpractice cases.

(5) The Founding Fathers Believed in the Right to Trial by Jury

“Representative government and trial by jury are the heart and lungs of liberty.  Without them we have no other fortification against being ridden like horses, fleeced like sheep, worked like cattle, and fed and clothed like swine and hounds.”

– John Adams

“I consider trial by jury as the only anchor ever yet imagined by man, by which a government can be held to the principles of its constitution.”

– Thomas Jefferson

“In suits at common law, between man and man, the trial by jury, as one of the best securities to the rights of the people, ought to remain inviolate.

– James Madison

“The civil jury is a valuable safeguard to liberty.”

– Alexander Hamilton

(6) You Cannot Have a Strong 2nd Amendment Without a Strong 7th Amendment

If you’re going to support the 2nd Amendment… or the 1st Amendment… or any other amendment, you must support the 7th Amendment right to jury trial.

As Tea Party Nation founder, Judson Phillips and Tea Party advocate Andrew Cochran have said, “Real conservatives need to defend each and every God-given right enumerated in the Bill of Rights, and fight to maintain the limits on central power inherent in the Constitution.”

Too many Americans who claim to base their political decisions on the Constitution and Bill of Rights fold like a paper airplane when push comes to shove.  Too many of us pick our founding documents apart to choose which of the limits on power in the Constitution, or which of the ten amendments in the Bill of Rights, we back at any given moment.

– Andrew Cochran, “Capping Gun Rights & Jury Trials Equally Wrong

Cochran also wrote that “Liberals who love civil jury trials for their causes need to protect our right to bear arms, and conservatives need to protect the right to civil jury trials from crony capitalists who would abridge our right to a civil jury trial through ‘tort reform.’”

The sad fact is that not only is this kind of selective enforcement of constitutional principles illogical and indefensible, it’s completely unnecessary.  As the myths above show, damage caps like those supported by Rep. Burlison just don’t work.

We must preserve and protect each fundamental right if we are to protect any of them. Constitutional rights should not be attacked, demeaned, or trivialized for the political gain of an isolated lobbying group. Constitutional rights are the cornerstone of our society and, as Missouri’s founders explicitly said, should remain inviolate.

What Is SB 589 Really About?

This bill isn’t about protecting patients.  It’s not about lowering health care costs.

SB 589 is about 2 things:  (1) Fear; and (2) the Insurance Company’s Bottom Line.

A policy paper supporting SB 589 and other damage cap proposals said doctors “fear” the status quo.  This “fear” might be real, but as described above, it’s unwarranted.  The bases of this “fear” have been disproved.  Much like a child’s fear of the monster in her closet, the coalition’s fear has no basis in fact, logic, or reality.

This “fear” has been empirically and undeniably refuted and disproved.

And so that leaves the insurance company’s bottom line.  Insurance companies – understandably – do not like paying for the damages caused by a negligent doctor’s misconduct.  Insurance companies are in the business of making money.  The less money insurance companies pay out equals greater profits for the company.

But insurance company profits are no reason to give up a fundamental right.

The Missouri Constitution ensures that “the right to trial by jury as heretofore enjoyed shall remain inviolate….”  [Mo. Const. Art. 1, sec. 22(a)].

Tort “reforms” like damage caps have the perverse effect of bloating government and penalizing tax payers through government funded bailouts of negligent actors. If the negligent person or company is not responsible for the damages, then the burdens must be borne by tax payers through Medicare, Medicaid, and assistance programs. Or it must be borne by the public through charitable institutions. Or it goes uncompensated and must be borne by the victim and their families

The right to trial by jury – whether under the Missouri Constitution or the 7th Amendment of the United States Constitution – is the ultimate lynch pin for all other constitutional rights. Freedom of speech, freedom to keep and bear arms, freedom to contract, freedom of religion — all are ultimately protected by the freedom – inviolate in Missouri – to have your case heard in a trial by jury.

Tell these special interests to stop messing with our constitution just to protect negligent doctors and insurance companies.

© Copyright 2014 Brett A. Emison

Follow @BrettEmison on Twitter.


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