Is Tort Reform Liberalism?

January 5, 2005

The political dividing lines these days, for the most part, are pretty clear. You may not be entirely conservative or entirely liberal but you know which side of the issue is which. One of the exceptions seems to be tort reform.

 

During a recent discussion of the issue on my radio show, a doctor called to inform me that I was actually a liberal. Really? And why is that? Because, he reasoned, I was making the same arguments against capping pain and suffering damages as the liberals. At issue was a proposal by President Bush to cap non-economic pain and suffering damages to $250,000. That sounds like a conservative idea until you start to more closely examine it.

 

Let's look at this issue from a truly conservative perspective. First of all, 12 jurors in my hometown who see the evidence, one would reason, are in a much better position to decide an individual case of malpractice than a bunch of elected officials in Washington who have never heard the case or seen the evidence. If you argue that jurors are too stupid to decide then you also must argue that they shouldn't vote, compromising the entire underpinning of our republic.

 

In addition to the states' rights argument, there's also the constitutional argument of separation of powers. The judicial branch of our government was set up to decide civil and criminal cases, not the legislative or executive branches.

 

But it's much more complicated than that. President Bush wants to cap the liability. That's to say that if a doctor hurries through an operation in order to turn the table and bring in another patient and, in the process, botches the operation and maims the patient for life, he should only have to pay $250,000 for the mistake. I want to stress that I don't believe most doctors would do that but some will and some do. If, for instance, you go in to have your leg amputated and the doctor cuts off the wrong one (which actually happened) the fact that you're wheelchair bound for the rest of your life is only worth $250,000?

 

I understand that there are far too many frivolous lawsuits but the answer is not to punish those who have already suffered. Punish the lawyers who bring the frivolous lawsuits not well-deserving clients.

 

The headline case in North Carolina a few years back involved a young girl who was disemboweled by a malfunctioning swimming pool drain. The manufacturer knew there was a risk of bodily damage but weighed that against installing an 11-cent screw in all of the units. They gambled that they would never be sued. They were wrong. The case settled out of court for over $20 million, the largest in the state's history. Tort reformers were outraged but that sum only included the cost of projected medical care and her potential lost earnings. It did not include pain and suffering. I think the payment should've been higher.