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Why Don’t Lawyers Mention the REAL Reason They Don’t Like Tort Reform?
By JLP | December 8, 2008
Check out this letter to the editor that was in today’s Wall Street Journal:
In your Dec. 1 editorial “Messing With Malpractice Reform,” you urge the Illinois Supreme Court to “side with the patients and the rule of law” in considering a case that could overturn the state’s cap on damage awards. Yet the editorial never mentions the patient who is at the center of that case.
She is a three-year-old little girl named Abigaile LeBron, whose life has been forever changed by the severe brain damage she suffered as a result of medical negligence. It is likely that Abigaile will have to be fed through a tube for the rest of her life. She will never develop cognitively or physically as her peers do. And she will likely never live independently. It is inarguably a very painful tragedy for Abigaile and all who know and love her.
The insurance industry and its brethren in the tort reform world have argued that Abigaile’s compensation for lifelong disability, pain and suffering should be arbitrarily limited, despite what a jury of average citizens may decide. The question before the Illinois Supreme Court is whether the Illinois Constitution allows Abigaile’s rights to be limited in this fashion to the benefit of insurance company profits. Twice before, our state’s highest court has decided in favor of patients and against the insurance companies that would limit these rights to protect their own profits. No new arguments have been offered by the insurance industry.
You argue that a reduction in malpractice premiums and the return of doctors to the state have resulted from the law containing caps. Nothing could be further from the truth. Not one case has been litigated under the new cap in Illinois. The simple fact is that those positive developments have resulted from strong, long-suppressed insurance reforms in the legislation. That law has now forced malpractice insurance companies to provide greater transparency on rate-setting and payouts that has in turn spurred competition, motivated more companies to enter the marketplace, and lowered premiums for doctors. Important to the discussion for your readers is the additional fact that Illinois’ largest malpractice insurer has reported that payouts have remained flat for the past 13 years. By the way, it’s the same insurance carrier that admitted during the run-up to this legislation in 2005 that capping awards would not guarantee lower premiums for its doctors.
The Illinois Constitution was put in place to ensure individual rights and freedoms. While corporations and profit-hungry executives often stack the decks against individuals in the marketplace and the halls of government, the courtroom can still provide all parties with a level playing field. The Illinois Supreme Court will now decide whether that standard remains in place for patients like Abigaile LeBron. You should let it do its job.
Philip Harnett Corboy Jr.
President
Illinois Trial Lawyers Association
Chicago
Here’s the problem I have with juries being able to award money damages:
They have no concept of how much money they are awarding. It’s not their money so why not be a cheerful giver?
I’m not saying that what happened to the little girl in the editorial isn’t a tragedy. It is.
I just think it would be nice for lawyers to stop hiding behind the sad stories, be honest and say, “I don’t like tort reform because it severely limits how much money I can make!” It’s silly to talk about “greedy” insurance companies when the lawyer gets a nice percentage of the winnings.
Topics: Miscellaneous | 6 Comments »
December 8th, 2008 at 11:54 am
First, your title is misleading because “tort reform” is important only to those lawyers who make their living representing plaintiffs in contingent fee litigation. There are many others who do not do that kind of work.
Second, I agree that juries cannot be trusted to deliver reasonable money damage verdicts in many cases. But that is not the fault of the lawyers. That is a problem with the morons who serve on juries.
That being said, there is no evidence that tort reform actually results in lower insurance premiums. That is a myth perpetuated by insurance companies who themselves are trying to increase their profits.
In sum, the personal injury lawyers and insurance companies are each motivated by money and juries can’t seem to control themselves.
December 8th, 2008 at 12:02 pm
TML,
Thanks for the comment.
I was referring to those lawyers who do make money on a contingent basis. I realize there are other kinds of lawyers…
December 8th, 2008 at 3:55 pm
Mr TML,
Without profit, there would be no insurance industry, and, in fact, no business at all. You can’t blame an insurance company for wanting to make a profit. Every business has the goal of making a profit so that it can continue its existence. “Profit” is not a four-letter word.
Dave
December 9th, 2008 at 9:03 am
The issue, I believe, is being reasonable. I do not think anyone would dispute that the family of Abigaile should receive some compensation. But remember the Macdonalds lawsuit. As I recall, a woman bought coffee, subsequently spilled it on her self, and then sued and won. I am not usre tort reform is the solution. Perhaps Judges should throw out more of the ridiculous lawsuits that are brought before them. And charge court costs to the people bringing suit. Remember the Judge who sued a small dry cleaning business for losing his pants. He requested millions.
December 9th, 2008 at 9:50 am
I am confused as to why we can trust a jury to make a decision on whether to impose the death penalty or send someone to prison (depriving an individual of rights) but not to make a decision on liability for a corporation.
December 9th, 2008 at 12:57 pm
I’m with Confused in his sentiment. In a trial, the parties present all the information available to a jury. Juries don’t arbitrarily pick numbers out of thin air. They most likely pick them based on the numbers they are given at trial. The resulting awards are often very high because the cost of care in the US is very high. Obviously, this does not account for punitive damages, but those are a different story.
In brief, we give a jury all the elements for making the decision that some attorneys can muster. Does anyone have a better system to suggest?
With respect to Tort Reform, I really don’t see the reason for a cap on damages. I can muster some pretty good reasons that logically argue against such legislation (e.g. cost of care), but my mind always goes to the salaries of those who argue in favor of such caps. Those who most strongly argue in favor of a limit to what a jury can award to cover a lifetime of care usually receive several times the suggested limit as an annual salary…