A potential new blockbuster case is now in the works because the California Supreme Court agreed to review the constitutionality of financial caps on damages in medical malpractice cases. The story is noted in a November 26, 2014 story at Insurancenewsnet. The story is mainly a restatement of a press release from a plaintiff’s advocacy group, and includes a link to the group’s amicus letter urging review by the court.
My much less than fully informed guess is that the court strikes down the caps. That’s my view because 1) the last few years have included multiple state supreme court decisions knocking out caps, as well 2)the issuance of as numerous studies indicating medical malpractice continues to kill or mains many people every year, and 3) numerous studies indicating that the caps do not in fact achieve their stated mission of reducing medical malpractice premiums. Indeed, the latter is hardly a compelling rationale when viewed from the perspective of the person killed or maimed. One can instead reasonably say that caps rules are unconstitutional takings of the property rights (tort claim rights) of the victims, and that caps are wealth redistribution efforts that target persons the least able to protect against the problem. Moreover, today we live increasingly in an age of precision and variables, as opposed to blanket rules based on the premise that one sized fits all. A $250,000 cap may may sense for injuries almost certain to heal, and few hassles. The situation, however, is quite different for a person who loses a limb. And the situation is even more extreme for a person who suffers global paralysis, or other awful injuries. One also would expect plaintiff’s to point out that a recent study suggested that damages caps reduce hospital safety.
On the defense side of the coin, I’ve never seen a data driven, peer reviewed article proving that damages caps reduce insurance premiums over time. But I do not work in the area, and so perhaps I’ve missed data-driven articles that are persuasive for defendants. I’ve seen a a couple of articles saying that fewer medical malpractice cases were filed, but that’s about it, going by memory.
One certainty is that the case will generate a frenzy of amicus briefs, news articles, spin stories and media sound bites. Lawyers, insurers, professional medical associations and consultants will have a field day. New papers are probably being written at this very moment.
Of greater note, the arguments and opinion should highlight the reality that its been 30 years since the “tort litigation crisis” was proclaimed. With so many years of experience now in the past, data exists and one can look to see the impacts of various pieces of “tort reform” legislation. The data of course will be not be perfect, and there are many variables. But, in a world increasingly full of data, one suspects the better data will be persuasive. Indeed, one might ask if Daubert standards should be applied to bar legal arguments based on hypothesized breaches of imagined floodgates, as opposed to actual facts and history studied through a reliable process.
It will be interesting to see if the defense side can present compelling, peer reviewed data to support its arguments. This may be a moment at which defense interests will regret taking extreme positions and limiting non-economic damages to a relative pittance ($250,000, in this instance), with no increases, ever. “Be careful what ……”
Also relevant is the principle that no one is an island, in tort litigation. A defense loss and a sweeping opinion could have ripple effects across other ponds.