September 17, 2011

The political pundits pushing for what they call “tort reform” have enjoyed many successes in recent years. Many states have enacted laws that have placed a “cap” on the maximum amount of money that can be recovered from negligent doctors and other careless health care providers that innocent and often powerless victims of medical malpractice (medical care that fell below the recognized level of care that was required under the circumstances) will receive as fair and adequate compensation for “noneconomic damages” (such as pain, suffering, mental anguish, disfigurement, and loss of enjoyment of life).

The often-touted promised benefits of medical malpractice reform are reduced medical malpractice insurance premiums for doctors and other health care providers, reduced medical costs, and less defensive medical procedures (often explained as doctors ordering certain medical tests and procedures only because they fear that they may be sued if they didn’t order such tests and procedures and which would not otherwise be ordered). Whether enacted caps on medical  malpractice awards are effective in producing the claimed benefits, and at what financial and human cost, will be the subject of future blogs.

The biggest non-financial casualty of caps on noneconomic damages in medical malpractice cases is the constitutional right to have juries decide civil disputes. States constitutions and the U.S. Constitution promise as inviolate the right to jury trials in civil matters. The Seventh Amendment of the United States Constitution, which is part of the Bill of Rights,  states, “In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules  of the common law.” (The U.S. Supreme Court has held that the Seventh Amendment does not apply to the states; however, many states have similar provisions in their state constitutions insuring the right to have civil disputes decided by juries.)

As one of our country’s founding fathers, James Madison, observed, “In suits at common law, trial by jury in civil cases is as essential to secure the liberty of the people as any one of the pre-existent right of nature.” Thomas Jefferson referred to civil jury trials as “the only anchor ever yet imagined by man, by which a government can be held to the principles of its constitution.” For nearly 800 years, the right to a jury trial in both criminal and civil matters has been guaranteed (the Magna Carta (1215) made such guarantees in its Article 39 — “No freeman shall be arrested or imprisoned or deprived of his freehold or outlawed or banished or in any way ruined, nor will we take or order action against him, except by the lawful judgment of his equals and according to the law of the land.”).

Caps on noneconomic damages are a violation of the right to a trial by jury. Juries are typically not advised about the existence of caps or the amount of the cap that will apply to their verdict. For example, Maryland law provides caps on noneconomic damages and specifically precludes any mention of the caps to the jury (Annotated Code of Maryland, Courts and Judicial Proceedings Article, Title 3, Subtitle 2A (“Health Care Malpractice Claims”), Section 3-2A-09(b), provides for a cap on noneconomic damages in the amount of $695,000 for claims arising between January 1, 2011 and December 31, 2011 (the cap rises $15,000 per year on January 1 of each year), and Section 3-2A-09(c)(1) states, “In a jury trial, the jury may not be informed of  the limitation under subsection (b) of this section.” Section 3-2A-09(c)(2) provides, “If the jury awards an amount for noneconomic damages that exceeds the limitation established under subsection (b) of this section, the court shall reduce the amount to conform to the limitation.”).

If in a criminal case a jury decided that the accused defendant was not guilty of the five crimes he was charged with, the presiding judge does not have the authority to overrule the jury’s decision and find the defendant guilty of any of those crimes. The public’s outcry if a judge attempted to impose his/her will/decision over that of the jury’s would be enormous under such circumstances, and our laws preclude such judicial abuse of power.

In a civil case such as a medical malpractice claim decided by a jury, what right does a judge (or a state legislature) have to impose its will/decision over that of the jury’s, by nullifying the jury’s determination of monetary damages for noneconomic injuries to the extent that it exceeds some arbitrary amount dictated by a law? Where is the public’s outcry?

Some appellate courts justify the impingement on the right to have juries decide the amount of damages in medical malpractice cases by saying that the jury still decides the amount of damages in such cases and that the caps only affect the amount of those damages that the successful malpractice claimant will actually receive. Such rhetoric is not only fallacious, it is downright dangerous — what other important and long-standing civil rights that are long-held to be inviolate will be subjected to the legislative whim in the future?

Before your rights as a victim of medical malpractice are further infringed or limited, you should inquire about your legal right to compensation when the medical negligence of a health care provider causes you to be seriously and painfully injured. Visit our website to be connected with medical malpractice lawyers in your area who may be able to answer your medical malpractice questions or call us toll free 800-295-3959.

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