Monday, August 29, 2016

UPDATE: Lawsuit filed against amendment to limit nursing home, other medical damages

Posted By on Mon, Aug 29, 2016 at 12:09 PM


The Arkansas Bar Association has already announced its opposition to the nursing home-backed amendment to limit damages in medical lawsuits. Today, it is expected to announce a list of former bar presidents who oppose the amendment and the filing of a lawsuit challenging the ballot title.

Says the Bar Association:

On November 8, 2016, you will be asked to vote on “An Amendment to Limit Attorney Contingency Fees and Non-Economic Damages in Medical Lawsuits;” which is an amendment to the Arkansas Constitution.

This Amendment will restrict non-economic damages. Non-economic damages, are meant to compensate victims for trauma, disfigurement, and pain and suffering. This amendment would limit damages awarded to the victim to $250,000.00. This means that no matter how horrific the injury, no matter how prolonged the suffering, no matter how preventable the death, the health care provider does not have to pay more than $250,000.00. If the injured person is elderly, frail, and dies because of an injury in the nursing home, $250,000.00 may not adequately compensate for the loss. If the injured person is a young child, poor, disabled, a homemaker—the worth of their claim is also limited to the $250,000.00 cap.

In addition, there is evidence that these types of limits on damages affect women more than men. The injuries that women suffer—loss or limitation of fertility, complications of pregnancy, reproductive harm—can’t be measured in economic terms – are these damages only worth $250,000.00?
One corrective: If the amendment makes the ballot and is approved, the legislature will set the damage limit. It could be higher than $250,000, but no lower. Given that it's modeled after measures in other states — and given the resistance by Republican legislators to damages in, for example, Claims Commission proceedings —  most expect that $250,000 will be the maximum.  Bottom line: The amendment will effectively end most medical litigation for the young and very old, who have no economic losses to show.

The organized bar's decision to mount a campaign is significant because it is separate from an existing effort so far supported primarily by plaintiffs' lawyers — those who bring the malpractice and negligence cases. The Bar Association includes representatives from both sides of the legal aisle — plaintiff and defense. (It is a fact that putting the plaintiffs' lawyers out of business also has an economic impact on the defense side.)

Ballot title challenges are typically filed directly with the Arkansas Supreme Court. I expect it to be filed today.

UPDATE: The lawsuit, with Scott Trotter as attorney, was filed today with the Supreme Court in behalf of the bar association's Fairness for Arkansas committee and as  individual plaintiffs, Nancy Wilson and Paula Casey, the former U.S. attorney. The Bar Association will discuss it at a news conference at 2:30 p.m. today.

Here's the lawsuit.

Here's the Bar Association news release.
The Bar Association said what critics have been saying for some time: the amendment would effectively abridge the constitutional right to a trial by jury. This is the ballot title that voters will see:

An amendment to the Arkansas constitution providing that the practice of contracting for or charging excessive contingency fees in the course of legal representation of any person seeking damages in an action for medical injury against a health-care provider is hereby prohibited; providing that an excessive medical-injury contingency fee is greater than thirty-three and one-third percent (33.3%) of the amount recovered; providing that, for the purposes of calculating the amount recovered, the figure that shall be used is the net sum recovered after deducting any disbursements or costs incurred in connection with prosecution or settlement of the medical-injury claim; providing that this limitation shall apply whether the recovery is by settlement, arbitration, or judgment; providing that this limitation shall apply regardless of the age or mental capacity of the plaintiff; providing that the prohibition of excessive medical-injury fees does not apply to workers' compensation cases; providing that the General Assembly may enact legislation which enforces this prohibition, and that it may also enact legislation that determines the relative values of time payments or periodic payments and governs the consequences and penalties for attorneys who contract for or charge excessive medical-injury contingency fees; providing that the General Assembly shall enact a measure which specifies a maximum dollar amount for a non-economic damage award in any action for medical injury against a health-care provider, but that such a measure may never be smaller than two hundred and fifty thousand dollars ($250,000); providing that the General Assembly may, after such enactment, amend it by a vote of two-thirds of each house, but that no such amendment may reduce the maximum dollar amount for a noneconomic damage award in any action for medical injury against any health-care provider to less than two hundred and fifty thousand dollars ($250,000); providing that the Supreme Court shall adjust this figure for inflation or deflation on a biennial basis; and providing that this amendment does not supersede or amend the right to trial by jury.
CORRECTION: I used an earlier, superceded proposed ballot title in my original post.

The lawsuit says the amendment attacks the right to a jury trial though it claims not to do so in two statements.

Both statements are incorrect and misleading in that the right to trial by jury in Arkansas presently includes the right of a jury to set the level of non-economic damages in any action for medical injury without observing a cap to be imposed by operation of the proposed Amendment. The ballot title fails to inform voters that a jury's discretion in awarding non-economic damages will be superseded by a cap.

Attorney General Leslie Rutledge
has often said in refusing to certify a variety of other ballot initiatives  that the sponsors haven't clearly identified how much a measure will change existing law. The impact of this amendment would be significant, something not obvious in the title.

The lawsuit notes that the amendment title fails to disclose that it strips some of the Supreme Court's exclusive authority over rule making provided in Amendment 80. The legislature has tried repeatedly to do this on its own hook, but been set back by the court.

The lawsuit also says the amendment title fails to define health care providers and costs well enough for voters to understand what the full amendment provides. Generally, it argues that voters aren't informed about a power shift from Supreme Court to legislature in several aspects of the law related to damage lawsuits.

To date, the campaign to put a limit on lawsuits has been financed almost entirely by the nursing home industry, with Fort Smith's Michael Morton, owner of some 70 nursing homes, the single biggest contributor. Hospital and physician groups are likely to join the campaign if the measure stays on the ballot.

Another clear problem with the amendment is the possibility that it eliminates punitive damages, an issue unspoken in the ballot title. Meaningful punitive damages serve as a deterrent to bad behavior.

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