California has onerous medical and nursing home malpractice awards. As we’ve discussed, under no circumstances can an award for non-economic damages (e.g., pain, suffering, disfigurement, etc.) be more than $250,000.00. If a jury, in its judgment, believes a person’s damages are worth more than the cap, a judge must reduce it. There are many, many examples of the injustice this misguided law has caused. By the way, the $250,000.00 figure was arbitrarily set in the early 1970s.
Since that time, there is the perennial battle of those for a free civil justice system and those for “tort reform,” who seek to limit what victims of malpractice can recover. Usually, these battles are waged on political partisan lines, and not without irony. The Democrats, often portrayed as big government advocates, argue for less regulation over the civil justice system, and Republicans, argue for more regulation.
Andrew Cochran from a blog called 7th Amendment Advocate makes an effective argument as to why conservatives should oppose tort reform. According to his bio, Mr. Cochran is a lifetime conservative and Republican who served as a political appointee in the Reagan Administration. He is also a lawyer, and a member of the Tea Party Nation and Tea Party Patriots. He believes that conservatives and Republicans should oppose tort reform efforts.
Citing the U.S. Constitution as his authority, Mr. Cochran makes several points as to why tort reform is not a conservative position:
We have a medical malpractice crisis, but not a medical liability crisis. The number of medical malpractice claims has been headed down – yes, DOWN – for years, down 15 percent from 1999 to 2008. The insurance industry’s own data reveals that the amount they’ve paid out for malpractice claims dropped by over 40% between 2002 and 2008, when adjusted for inflation. H.R. 5 is like fixing a flat tire by emptying the radiator. It misses the point and attacks a non-problem.
Medical malpractice today, religious liberty and gun rights tomorrow? There is no differentiation regarding medical malpractice lawsuits under the Constitution. This would be the same as capping damages in suits against schools firing Christian professors or limiting the size of gun clips.
The Founding Fathers were never for tort reform. Back in September, I offered to buy the best dinner in Washington to anyone to shows me just ONE pro-tort reform quote by any Founding Father. I’ve had no takers and I’m not worried, because none of them proposed limiting our 7th Amendment rights.
The injustices caused by California’s cap on damages in medical malpractice cases are well known to those in this field. The law unfairly targets the children and the elderly, and deprives true victims of malpractice or elder abuse the justice they deserve.
The accident and personal injury lawyers at Walton Law Firm offer free consultations to individuals who have been injured in all types of accidents, including automobile accidents, pedestrian injuries, dog attacks / bites, worksite injuries, pedestrian injuries, construction accidents, property injuries, and malpractice matters. Call (760) 571-5500 or (866) 607-1325.