Tort reform vital,
but proposals are far from perfect
OUR CULTURE OF victimhood has combined with a growing lottery
mentality to create a litigation explosion that stifles job
creation, threatens critical medical care in many areas and is too
often an affront to the concept of justice and fairness.
While there’s plenty of room to debate specific proposals to
address the problem, there should be no room to debate the fact that
Americans file too many lawsuits that should never be filed, and
that outrageously excessive jury awards — sometimes in cases most
people would agree lack any merit — frighten many businesses and
doctors into settling cases that lack merit.
Large jury awards wouldn’t be such a problem if the only ones who
suffered were those who did wrong. But liability insurance picks up
many of those costs, and businesses pass them along in higher prices
or else eat the losses and curtail hiring. The situation is even
worse for doctors, whose fees are dictated by government and
insurance company reimbursement rates.
Even suits that are thrown out of court cost time and money to
fight; and settling bogus cases rather than risking a bad verdict,
like practicing defensive medicine, adds even more costs to us
all.
It is a problem that desperately needs a solution. And so we’re
glad that both Gov. Mark Sanford and the House Republican Caucus
have made it a priority.
Both seek to limit judge- and jury-shopping and to protect
wealthy defendants from getting stuck paying the entire judgment,
even if their share of the blame was minuscule. Those changes, along
with House proposals to strengthen the mechanisms for punishing
those who file frivolous suits, will go a long way toward addressing
the problems.
So will a House proposal to create a medical claims review
procedure that would have medical professionals — who can make
decisions based on knowledge rather than emotion — review claims and
make nonbinding recommendations before a lawsuit could proceed. This
could encourage plaintiffs to drop frivolous suits and defendants to
settle when they were wrong.
But doing all of this right is key. In last session’s House bill,
for example, the provision protecting deep-pocketed co-defendants
from getting stuck with the bill contained loopholes that made it
virtually meaningless.
The other key is avoiding simplistic solutions, such as arbitrary
caps on punitive damages and so-called non-economic damages. We have
strong reservations about the way such damages are awarded; but we
believe caps should be a last resort. The more complex proposals may
well solve the problem. Moreover, caps are so controversial that
their presence could once again kill legislation that we desperately
need.
As for punitive damages, we see no reason ever to limit them;
what we need is to radically change them. Since punishment is the
job of the government, punitive damages should be awarded mostly or
entirely to the state, not to plaintiffs and their attorneys.
Trial lawyers who refuse to acknowledge even that frivolous
lawsuits are filed are either delusional or deceptive. But the
doctors and business people who believe caps are a silver bullet are
off-base as well. Unfortunately, those two extremist views have so
far driven most of the “debate” in this nation and state, and it
threatens to do so again next year. It’s time to get past that, and
pass a serious reform
package. |