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Article published Mar 14, 2005
Work still to be done on tort bill
COLUMBIA -- When
the state Senate approved a sweeping tort reform package last Tuesday, Michael
Fields took a deep breath.Then the state director for the National Federation of
Independent Business went back to work.Even though both houses of the General
Assembly for the first time have passed legislation limiting lawsuits, Fields
won't rest until Gov. Mark Sanford puts his signature on the finished
product.Fields, it seems, is a follower of the great philosopher Yogi Berra."It
ain't over until it's over," Fields said. "If anybody thinks it is, they need to
wake up from fantasy island."State Sen. Jim Ritchie, R-Spartanburg, is hopeful
that it could be over today. The House begins budget negotiations, and Ritchie
said there is a small window of opportunity for members to concur with changes
the Senate made to the bill.If representatives don't get to the bill today, it
could be two weeks before they come back to it. The House will be tied up with
the budget the remainder of this week, and it is not in session next week."The
longer it lingers, the more concern there is inthe business community as well as
in the general public over whether we'll achieve the goal of reforming the tort
system," Ritchie said.Smith: Bill is flawed and needs workHouse Speaker Pro Tem
Doug Smith, R-Spartanburg, said that House rules and concerns about the Senate
changes make it unlikely that there will be any movement today."Even if 123 of
us wanted to concur, one person could hold it over," Smith said.With a number of
trial lawyers in the House, Smith expects that to happen. Even if it didn't,
questions about the language of Senate amendments would keep the House from
sending the bill on to Sanford."What we know right now is that the bill is badly
flawed," Smith said. "Frankly, we're tired of the attitude we're getting from
proponents and opponents. Everyone needs to relax so we can fix the
language."The greatest change centers around joint and several liability, the
so-called "deep pockets" rule that said if multiple parties are responsible for
a person's injuries, one party could be forced to pay an entire award if the
others can't pay, even if that party had the least responsibility for the
injuries.The House version of the bill totally abolished joint and several. The
Senate amended that, saying that defendants who are less than 50-percent
responsible could not be required to pay all of an award.All defendants would
pay only their share of the damages in cases where no one is more than
50-percent responsible. That includes the person filing suit, Ritchie said."A
plaintiff can recover against any and all defendants as long as he didn't
contribute more than 50 percent to the accident," Ritchie said. "If he
contributed more than 50 percent, he loses."The Senate added an "empty chair"
provision that would allow one or more defendants to claim that a party that is
not included in the lawsuit was responsible for an injury. A jury would be
allowed to determine the "empty chair's" portion of the responsibility, thereby
lowering the amount the other defendants could be required to pay.It's that
provision that Smith says needs fixing."The way it's written now, the defendants
are responsible for all the damages," Smith said. "If the people who are pushing
the House to act quickly want us to take the Senate amendment, as flawed as it
is, we can do that and give them what they want -- a piece of legislation that
will end up in court and have us right back where we started."Pat Knie, a
Spartanburg attorney and a member of the South Carolina Trial Lawyers
Association, said he's confident that the provision will come out of the final
version. But with or without it, he believes the changes to the joint and
several rules will further clog an already overloaded court system."People who
would normally settle will now want to take their chances," Knie said. "This is
not well thought out. It's designed to serve the special interests of the
trucking industry, the building industry and a few other (members of the state
Chamber of Commerce)."The changes to joint and several aren't the only issues
the legislation addresses. The bill also:• Attempts to limit jury shopping by
requiring people to file lawsuits in counties where an injury occurred or where
the defendant lives.• Lowers the statute of repose – the time a homeowner has in
which to sue a builder for construction defects – from 13 to eight years.•
Provides for sanctions against lawyers who file frivolous lawsuits.Both houses
also approved a bill that caps pain and suffering awards at $350,000 for
injuries suffered at the hands of a physician.In cases with multiple defendants,
the awards can be "stacked" for a total maximum award of $1.05 million. For
example, a person injured during surgery could collect $350,000 each from the
surgeon, anesthesiologist and the hospital involved if all three are found to be
negligent.The medical community said it needed the cap to reign in skyrocketing
malpractice insurance premiums.Knie said he questions the constitutionality of
the cap."Why should one segment have the luxury of having limits placed on the
amount it has to pay when it is sued?" Knie said. "There will certainly be legal
tests."Worries exist over "the little guy"While the changes might be good for
the business and medical communities, Dan Wueste, a Clemson University professor
and director of the school's Rutland Center for Ethics, said they could be
devastating for "the little guy.""There's a reason for concern," Wueste said. "I
wonder whether it's being instituted in the interest of regular people or the
interest of businesses. I don't know the answer, but the question is
there."Wueste said he's curious about how juries will calculate the level of
responsibility in cases with multiple defendants."It's difficult enough
determining if someone is causally linked to the harm," Wueste said. "There's a
sense of concern for fairness on the side of the person who has been
hurt."Wueste also said that while capping medical malpractice awards might lower
insurance premiums for health care providers, that won't translate into lower
costs for patients."Fees are still going to go up rather than down," he
said.Knie said he's hopeful that the friction between the House and Senate will
kill the bill entirely."We don't concede anything," Knie said. "There's still a
chance that no bill will pass this year. The House may not like the Senate
version."Smith said the trial lawyers are being overly optimistic and are
overlooking the fact that both bodies have passed tort reform
legislation."They're banking on this somehow getting hung up," Smith said.
"There's a commitment from the Senate and House leadership to get it done, but
we need to get it done right."Until it is done, Fields won't let his guard
down."The trial lawyers are a formidable opponent," he said. "That organization
and their membership and their allies are vigilant and diligent. They play and
play hard."Robert W. Dalton can be reached at 562-7274 or
bob.dalton@shj.com.