Thursday, September 1, 2016

Another challenge filed to nursing home damage limit amendment

Posted By on Thu, Sep 1, 2016 at 1:02 PM

A second lawsuit was filed today seeking to have the nursing home damage limit amendment removed from the ballot.

The new lawsuit challenges in addition to the sufficiency of the ballot title the verification of signatures for the amendment. The lawsuit alleges that backers of the amendment didn't get the required background checks for paid canvassers before gathering petitions. It also cites other shortcomings in the signature process.

The amendment sets a cap as low as $250,000 on non-economic damages for a person harmed by a nursing home or other health care provider. It also caps attorney fees at a third of the award and gives the legislature, rather than the Supreme Court, rule-making authority. Nursing homes have paid for the campaign so far, but doctors and hospitals are expected to chip in if the amendment makes the ballot.

A lawsuit was filed earlier by a committee of the Arkansas Bar Association citing deficiencies in the ballot title, particularly a failure to list the significant changes the amendment would bring to existing law.

The new lawsuit is by the Committee to Protect Arkansas Families, a grassroots advocate for nursing home quality; its leader Martha Deaver, and four other plaintiffs — retired Col. Mike Ross, retired Judge Marion Humphrey, James Brooks and Adam Jegley.

The suit says state law requires petition sponsors to obtain at their cost a State Police criminal record check 30 days before registration of a paid canvasser and provide certification of that to the secretary of state. The suit alleges that this wasn't done, so none of the signatures submitted on July 8 should be counted.

The suit cited other defects in the statutory requirement for submissions that should disqualify July 8 submissions. The secretary of state verified about 92,000 signatures in the July 8 submission, 8,000 more than necessary to qualify to gather more signatures should a sufficient number of the 92,000 be disqualified for other reasons. But the lawsuit argues that there were facial defects that should have disqualified thousands of those signatures. These included signatures gathered by uncertified canvassers, signatures from different counties on one signature page, post-dated signatures.

The lawsuit, filed directly with the Arkansas Supreme Court, asks that a special master be appointed to review evidence.

Here's the lawsuit.

The challenge of the title says it incorrectly and improperly states the amendment doesn't limit the right to a trial by jury, when it negates a jury's ability "to award appropriate damages."  It says there's a partisan coloration in a title that talks of "limits" on attorney contingency fees that hides the abridgement of a jury trial. The wording "hides the true intent to this amendment, which is to limit the amount that may be recovered for
personal injury or death."

The amendment title fails to mention the transfer of rule-making authority to the legislature and it fails to define important terms like "non-economic damages" and "disbursements" that may be deducted from recoveries and "health care services."

The suit also says the amendment's limit on contingency fees is really a means to limit damages. Also, while the amendment purports to limit damages in only medical negligence cases, it vests "unfettered discretion to the legislature to define essentially any action as an action for medical injury."

Chase Dugger, director of Healthcare Access for Arkansas, provided this statement:

This is the second desperate attempt in a week to stop Arkansas voters from having a voice in getting this inflation of health-care costs under control. We followed all the rules and took the proper legal paths to get the amendment on the ballot. Much like the lawsuits they file against doctors and hospitals, these lawyers sue on every issue they can think of, hoping anything will stick and pay off for them.

The Committee filing the lawsuit issued statements from plaintiffs:

Statement form Retired Judge Marion Humphrey:

The Committee to Protect AR Families has uncovered numerous issues related to the petition and signatures submitted to the Arkansas Secretary of State, which I find very alarming. Any attempt by a group to take away the constitutional freedoms of Arkansans should be closely examined. It is important that our laws be followed, and I have concerns about the misleading nature of the ballot title, as well as, an apparent failure to properly and timely inform the Secretary of State of its paid canvassers. Not only is the title of the ballot confusing, what is even more worrisome is that it appears the public was asked to sign these petitions without knowing the true nature of its intent. I am against Issue 4 because it unfairly tilts the scales of justice against Arkansas families.
Statement from Colonel (Ret.) Mike Ross:

Arkansas has a long, proud history of its sons and daughters serving our nation when duty called. These brave men and women fought to defend our nation and preserve the very freedoms with which we are blessed including the right to free speech, the right to bear arms and the right to a trial by jury. Now, with the passage of time, many of these veterans have grown older and find themselves in need of protection. As they fought once for us, we must fight for them today.

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