Wednesday, April 20, 2016

Rutledge approves broader amendment on limiting medical lawsuits

Posted By on Wed, Apr 20, 2016 at 5:44 PM


Attorney General Leslie Rutledge
earlier approved a proposed constitutional amendment on limiting damages in medical injury lawsuits but changed a wholly partisan ballot title submitted by Dan Greenberg, a former legislator who heads a conservative advocacy organization.

He came back with another, broader proposal and Rutledge speedily gave it her OK — unlike the persnickety extended evaluations she tends to give proposal from the liberal end of the spectrum.

She did at least again remove a loaded word from the ballot title proposed by Greenberg (emphasis supplied):

The Lawsuit Reform Amendment of 2016: An Amendment to Limit Attorney Contingency Fees and Non-Economic Damages in Medical Lawsuits
Here's one of dozens if not thousands of examples you can find that explain why "reform" is a loaded word. From the Guardian:

The entry in our style guide is clear: "Reform: to change for the better; we should not take the initiators' use of the word at its face value." This is not a peculiar Guardian diktat – it is one of those entries that are there to remind our writers and editors of a common error in English. The Collins and Oxford dictionaries also leave no room for ambiguity on this point.
Rutledge approved this:

An Amendment to Limit Attorney Contingency Fees andNon-Economic Damages in Medical Lawsuits

This proposal is not meant to reform, or change for the better, circumstances for anybody but malpracticing and negligent nursing homes, doctors and hospitals. It will build into the organic law disincentives to lawsuits.

It is called putting a thumb on the scales of justice; or blocking the door to the courthouse — for example for elderly people horribly mistreated by nursing homes. See the woman left to die in abject misery at one of Michael Morton's nursing homes — a case that saw a judge admit to taking a bribe to reduce the damage verdict from $5 million to $1 million. What's a dying old lady's misery worth to a nursing home or legislator — not as much as $1 million, surely they calculate.

In Greenberg's first run at this, Rutledge refused his laughable title on a proposal to cap actual and punitive damages "The Arkansas Health Care Protection Amendment." 

So now Greenberg is back And it is worse.

It limits attorney fees to 33.3 percent of the amount recovered after costs.

It empowers the legislature to set limits on non-economic damages, though no lower than a whopping $250,000. No breaks for age, where the injury could be enormous and the result of the most egregious conduct but lost wages might be negligible.

At other times, Rutledge has rejected ballot proposals because they didn't adequately explain the impact on existing law. No such objections here. No explanation that a potential $250,000 limit is against millions currently. Nor does it explain other potentially harmful outcomes such as the idea of the legislature getting into the business of deciding the appropriate charge for doing a legitimate business. What's next: A limit on car dealers' markups?

The nursing homes are definitely behind this — lobbyist Chase Dugger is working on it. Whether a broader coalition has been assembled will become apparent when a group files papers reporting expenses on the petition drive.

This measure, unlike Greenberg's first, doesn't specifically mention punitive damages. I have no idea if repeal is suggested by implication, but I believe it is is. Perhaps this is something else that Rutledge should require to be disclosed. Punitive damages can make bad actors do right, absent any meaningful risk from judgments on actual pain and suffering.

Some timely additional indictments in the Mike Maggio case might be useful in lawyers' opposition to this campaign — though lots of TV ads of the smirking Maggio couldn't hurt.

UPDATE: Video at top assesses change in Texas to a $250,000 cap on non-economic damages. It hurt people.

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