Articles Posted in Tort Reform

The title of this post is the title of a law review article that appears  in Vol. 5, Issue 1 of the Yale Journal of Health Policy, Law and Ethics:    www.dayontorts.com/uploads/file/Debunking Medical Malpractice Myths(1).pdf.

Here is the last paragraph of the article:

No one denies that there is a broad array of very serious health care
issues facing the United States right now-patient safety, rising costs,
availability and affordability of health insurance, and, in some places,
rapidly rising malpractice premiums (although they are easing as we enter
a soft market). But even with these problems, caps are not a solution.
Lawmakers and regulators should stop the insurance industry from pricegouging
their policyholders, even while the industry’s profits rocket
upwards. Moreover, doctors would better serve themselves and their
patients by directing their anger and efforts regarding rising premiums
toward the questionable practices of the insurance industry and the subset
of doctors who repeatedly commit malpractice without facing adequate
discipline. Seeking to take away patients’ rights is not the answer.

I recently wrote about a few of the ways the tort reform legislation that hit Tennessee effective October 1, 2011 will impact the victims of the fungal meningitis outbreak.  

Heidi Hall of the Tennessean talked to one of the sponsors of the tort reform legislation.  This is what he said:

Sen. Jack Johnson, R-Franklin, said he stands by the need for it to attract companies and jobs to Tennessee — even though now at least 52 have been sickened in the state by the outbreak, and six of those cases resulted in death.

Yet another effort to restrict the right of jurors to award damages based on evidence has been declared unconstitutional.  This time, the Supreme Court of Missouri struck down the damage caps imposed on damages for pain, suffering, disfigurement, and disability.

In Deborah Watts as Next Friend for Naython Kayne Watts v. Lester E. Cox Medical Centers d/b/a Family Medical Care Center, Lester E. Cox Medical Centers, Melissa R. Hermann, M.D., Matthew P. Green, D.O., and William S. Kelly, M.D., SC91867 (Mo. July 31, 2012),  the court found that the caps violated the Missouri State Constitution because it violated the right to trial by jury.  Article I, section 22(a) of the Missouri Constitution, mandates in pertinent part that “the right of trial by jury as heretofore enjoyed shall remain inviolate.”  

The court reached this result after over-ruling twenty year old precedent that said that damage caps did not violate the Constitution.  The court said "while this Court always is hesitant to overturn precedent, it nonetheless has followed its obligation to do so where necessary to protect the constitutional rights of Missouri’s citizens."

Article 1, Section 17of the Tennessee Constitution provides that " all courts shall be open; and every man, for an injury done him in his lands, goods, person or reputation, shall have remedy by due course of law, and right and justice administered without sale, denial or delay.”  

The Tennessee Attorney General was asked to opinion whether legislation which set a significant surety bond contest the licensure of equine slaughter facilities would likely be held unconstitutional under Tennessee’s Open Courts Clause.  In Opinion 12-44, the Attorney General concluded that imposition of such a bond would likely violate the Open Courts Clause.

The Attorney General said as follows:

The Tennessee Attorney General has weighed in on the "Restrict the Civil Justice Rights of Tennesseans In Exchange for the False Promise of Low Paying, Unspecified Jobs Without Benefits Act of 2011," more commonly known as the Tennessee Civil Justice Act of 2011.

Senator Jim Kyle made these inquiries?

• 1. Do the limitations on damage awards in Tenn. Code Ann. §§ 29-39-101 to -104 apply to health care liability actions? 

• 2. Do the limitations on damage awards in Tenn. Code Ann. §§ 29-39-101 to -104 apply to physicians and nurses employed by a local governmental entity who are litigants in a health care liability action? 

Three professors have conducted a study to see if legal restrictions on patient rates have had an impact on the supply of physicians.

The result?  The  researches found no evidence that the legal changes increased the supply of primary care physicians or specialists.

But then again, they relied on facts.

The Pop Tort has done a nice job collecting information about Americans Legislative Exchange Council  (ALEC), the corporate, right-wing group that sponsors a terrible array of legislation  that has found its way to the Tennessee General Assembly.

Read and learn about the dirty underside of our poliltical process.

Oral arguments were held a couple months ago on the validity of caps on damages under tort reform measures in medical malpractice cases in Florida.  The arguments on now available on the Web.