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Exposing the Lie of Tort Reform

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When Naython Watts turns six on Nov. 1, he won't realize that it's his birthday. He suffered disabling brain injuries because of botched medical care by not one -- but two doctors -- just before he was born. As a result his mother, who is a widow, will have to care for him during his 50-year life expectancy.

A little blond child with a beatific smile, Naython makes sounds but can't talk. The child suffers from seizures and has difficulty feeding himself. He can't walk on his own and has the mental capacity of a two-year-old. Naython will always need around the clock care. A home video on YouTube shows how badly the doctors ruined his life.

His mother, Deborah, successfully sued the Cox Medical Center Centers in Springfield, Mo., for permanently inuring her son. She won a $1.45 million jury award for non-economic damages plus a $3.37 million award to cover future medical damages. (See Watts v. Cox Medical Centers, 2012 Mo. LEXIS 155.)

Then a tort "reform" law made his situation exceptionally cruel. The state law automatically slashed the family's non-economic damages to only $350,000. It also split the medical damages award in two, making half of it payable in annual installments of 50 years with an interest rate of 0.26 percent.

Last summer the Missouri Supreme Court declared the hideous statute unconstitutional, ruling that it violated the right to a trial by jury. "Once the right to a trial by jury attaches, as it does in this case, the plaintiff has the full benefit of that right free from the reach of hostile legislation," the high court declared. "Statutory damage caps were not permissible in 1820 [when the state constitution was adopted] and... remain impermissible today."

The Missouri court ruled the tort reform law was unconstitutional jury tampering. The historic role of juries in the United States is to find facts and determine damages. In fact, supreme courts in Alabama, Georgia, Illinois, New Hampshire, Oregon, Texas and Washington have also declared their state damage caps unconstitutional.

The Lie of Tort Reform

Little Naython will get the benefit of the jury's award for his medical care. But in 33 other states the victims of bad doctors will not. Tort reform laws in those states cap non-economic damages. In those states, jury awards for non-economic damages (pain and suffering) are arbitrarily slashed as low as $250,000, regardless of what the facts are.

"This is a travesty and it's occurring around the country," said the Watts' family lawyer Roger Johnson of Johnson, Vorhees & Martucci in Joplin, Mo. "In cases like Naython Watts, insurance companies are getting off without having to pay a thing. If there is no accountability in the medical profession, these kinds of medical mistakes will happen over and over again."

Tort reform is a lie. It doesn't benefit the general public and results mainly in stripping Americans of their rights. The laws are pushed by well-funded, anti-consumer groups with friendly-sounding names like "ALEC" and the "U.S. Chamber of Commerce." Their goal is to boost insurance company profits, insulate incompetent doctors from liability and promote propaganda about a non-existent "lawsuit explosion." The result is that badly injured consumers pick up the high cost of medical mistakes in the name of cheaper malpractice insurance for doctors -- who make the mistakes.

Ironically, a study from Americans for Insurance Reform in 2009 found that under Missouri's damages cap, medical malpractice rates actually went up 1 percent, while in neighboring Iowa, which has no damage cap, malpractice premiums dropped 6 percent.

Tort reform does not achieve another goal of reducing healthcare costs. A groundbreaking study published in the Journal of Empirical Legal Studies this year examined the effects of the tort reform law in Texas, one of only two states where detailed data on malpractice claims is publicly available. "We find no evidence that Texas's 2003 tort reforms reduced health-care spending or spending trends," the study says. It adds, "it is time for policymakers to abandon the hope that tort reform can be a major element in health-care cost control."

According to a 2012 report by the Missouri Foundation for Health, "In Missouri the only clear impact has been a drop in the number of claims and lawsuits made and a more profitable malpractice insurance industry, while other indicators remain largely as they were before reform,"

"Ultimately the burdens of the reforms likely fall disproportionately on the young, economically disadvantaged and those who suffer the most severe injuries," states the report.

We can only hope that the Missouri Supreme Court starts a nationwide trend, supported by these and other studies, to eradicate the disease of tort reform.

Images courtesy of Roger Johnson of Johnson, Vorhees & Martucci.

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