Some Thoughts on Tort “Deform” in Iowa
An Eye-opening Essay by Andrew Smith, Democratic Candidate, Iowa House District 40
“This
issue is so important to the citizens of Iowa and goes way beyond this
one piece of legislation proposed by Rep. Horbach. The Enron scandal of
the past couple years reminded me of the importance of a strong civil
justice system. It reminded me that altering our civil justice system
to favor large corporate interests erodes society’s ability to
adequately deter wrongful conduct. It also reminded me how these
so-called tort reform measures being proposed year after year by the
Republican-controlled legislature come at the expense of the general
public.”
–Andrew Smith
To learn more about Andrew Smith or to contribute to his campaign, go here.
My
opponent, Rep. Lance Horbach (R), was elected to the Iowa House of
Representatives in November of 1997, by a mere 9 votes in one of the
closest elections in Iowa history. In 2000, he sold his interest in a
small furniture business he co-owned and joined a company outside the
district he represents called “Independent Insurance,” in Marshalltown,
Iowa. According to the company website, “Lance specializes in large
account sales development.”
This
past legislative session, Rep. Horbach was the floor manager in the
Iowa House of Representatives of HF 2440, a bill aimed at capping
non-economic damages in medical malpractice cases. HF 2440, which
almost all the Iowa House Democrats opposed and which Governor Vilsack
vetoed would have capped non-economic damages in tort, contract, or
other actions against a health care provider to $250,000 unless there
was a finding of actual malice against the health care provider.
Economic damages, or damages to compensate for past or future wage
loss, were not capped under the bill. Essentially, what this means is
that if you go in for surgery and subsequently develop a disability due
to medical malpractice, you could still sue for purely economic damages
such as health costs (related to the disability) and repayment of
future money you cannot now earn because of your disability under HF
2440, but you could only sue under the cap for no more than $250,000
for any kind of non-economic or “quality of life” damage suffered due
to the malpractice. As a result, the $250,000 cap proposed by Rep.
Horbach would have limited recovery on a variety of serious and real
damages to medical malpractice victims, including loss of ability to
have children, loss of body function, loss of body parts,
disfigurement, loss of consortium, and physical pain and suffering.
In my
opinion, capping non-economic damages is a bad idea because it
disproportionately harms children and elderly victims of malpractice,
because they often have little or no economic losses. When children,
women, seniors and minorities win malpractice lawsuits, a larger
proportion of their compensation is often made up of non-economic
damages than economic damages. Therefore, in states that cap
non-economic damages, children, women, retirees and minorities usually
receive significantly less compensation than white males for the exact
same injury.
From the
evidence and studies available, it appears that caps also fail to lower
premiums in every state that has tried them. Trial lawyers, insurance
companies, and doctors will continue to debate the effect of caps with
study after study, but to me, there is a greater fundamental principle
at stake that makes these studies less important, and that is the
constitutional right to a fair and impartial jury.
The
right to have justice determined by a fair and impartial jury of one's
peers goes to the heart of our system of government, and whether to
limit this power of the jury to determine justice is much more than a
mere economic question – it is a question of whom do we trust.
By
arbitrarily capping non-economic damages, Rep. Horbach et al. are
essentially saying that they don't believe Iowa juries can be fair,
deliberate and careful in their decisions. They are essentially saying
that Iowa juries are out of control and their power needs to be
limited. But unlike Lance Horbach, I trust Iowa's juries more than I
trust the Iowa legislature.
Trusting Iowa Juries:
The data available seems to suggest that my trust in Iowa juries is
well founded. Even the conservative U.S. Chamber of Commerce found in a
recent state liability study from March of this year that Iowa had the
fourth best jury system in the nation. The study also found that Iowa
ranked first in jury fairness and fourth best in jury predictability.
This study appears to confirm that Iowa juries are already extremely
conservative, fair and business friendly even without arbitrary limits
being imposed on their power.
In my
opinion, the people of this great state have done a great job of
balancing the scales of justice and determining what amounts to justice
in individual cases. That is because the people of the state of Iowa
are level-headed folks, who take their duty as fair and impartial
jurors seriously. When they vote to find someone guilty in the criminal
court room beyond a reasonable doubt, or vote to hold someone liable in
the civil system for damages, they do so after careful and deliberate
thought, and after weighing the evidence before them in the court of
law in a fair and impartial fashion.
In Iowa,
we trust that our juries can make the important choices that go to the
heart of our democracy without second guessing them. We trust that the
judgment they come to will be fair. But legislation that puts an
arbitrary cap on juries does not trust the people, but undermines and
limits the judgment of the people of Iowa by limiting what they can
find in individual cases. In my opinion, a fair and balanced Iowa jury,
free of obstacles in determining justice is as fundamental to our
system of government as the right to vote, and legislation such as HF
2440 is so insidious because it serves no real purpose other than to
dilute the power of Iowa juries.
Skewing The Scales of Justice:
In Iowa, we trust that the citizens of this state can determine how to
vote after carefully weighing the issues. But I can't understand why
the Republican-controlled legislature and my opponent cannot share that
same trust when it comes to juries awarding damages. Ultimately, it is
not the government’s business to interfere with this fundamental right
to a fair and impartial jury system. The scales of justice should not
and cannot be skewed from the start in favor of one side.
Unfortunately, that’s what one-size-fits-all caps do; they not only
skew the scales of justice in favor of large corporate insurance
companies, but limit how far those scales can ultimately bend.
HF 2440,
proposed by our so-called conservative friends, is not a conservative
piece of legislation. It is not conservative to have the state
legislature telling juries what is the maximum they can find amounts of
justice. It is not conservative for legislators to determine just how
far the scales of justice can bend. That is not their duty. Their duty
is to make sure the procedures are fair, and then trust the people in
the decisions they make. Believing in the people, as rational decision
makers is the truly conservative policy. It's also not conservative for
a legislature to believe they know what amount of money can amount to
justice in all medical malpractice cases. Determining justice can only
be the province of juries that have heard all the evidence in a case
and properly deliberated.
For example, let me ask some rhetorical questions:
What is the price tag you put on losing the functioning of 60% of your brain?
What is the price tag you put on the memories of your family?
What is the price tag you put on waking up every single day, for the rest of your life with piercing headaches?
The
answer to these questions requires an intense, individualized query by
juries. No legislative body can put caps on the suffering of victims,
and that’s why I am extremely suspect of those who advocate a system
that wants to take away the constitutional right to a fair and
impartial jury trail.
There
are problems in our health care and insurance system in the state of
Iowa. There are also plenty of positive reforms that can be made. There
is no doubt that there are many challenges ahead in dealing with rising
insurance premiums. And these problems, in some circumstances are
extremely serious.
However,
you don’t fix the problem by limiting the constitutional right to an
impartial jury, and you don’t fix the problem by advocating a system
that disenfranchises the right of equal access to justice. You don’t
fix the problem by tampering with the scales of justice so they are no
longer even, and you don't fix the problem at the expense of those who
suffer terrible emotion and physical trauma.
Serving the Special Interests:
Capping non-economic damages in medical malpractice cases is simply
reform that serves the special interests. It is reform that is about
making mess ups by doctors and health care providers a low predictable
cost of doing business for the large corporate insurance companies that
insure them.
Today's
high insurance rates are not being caused by frivolous medical
malpractice lawsuits; they are being caused by the stock market
tanking. The medical insurance company’s holdings took a massive
beating since 2000, and as a result, they are raising rates and gouging
doctors like never before to make up for investment losses. It's that
simple.
I
believe now more then ever, we need stronger voices to stand up and
expose the lies and half-truths surrounding “tort reform.” That is what
I am going to do if elected to the Iowa House of Representatives.
This
issue is so important to the citizens of Iowa and goes way beyond this
one piece of legislation proposed by Rep. Horbach. The Enron scandal of
the past couple years reminded me of the importance of a strong civil
justice system. It reminded me that altering our civil justice system
to favor large corporate interests erodes society’s ability to
adequately deter wrongful conduct. It also reminded me how these
so-called tort reform measures being proposed year after year by the
Republican-controlled legislature come at the expense of the general
public.
Insurance Industry Controls Health Care:
I find it interesting that the medical malpractice debate always
focuses on trial lawyers and frivolous lawsuits. Yet we never
collectively focus our attention on the motives of the insurance
industry that is often behind these so-called “tort reform” proposals.
Doctors who are worried about rising insurance premiums should think
about pointing the finger not at those who are injured and seek
justice, but at the insurance industry itself. The real problem
isn’t lawsuits in my opinion; it's the insurance industry which has too
much control over America’s health-care system today.
Big
insurance companies and their related branches decide whether patients
get the tests and treatment they need, how doctors practice medicine,
how much doctors are paid for their services, how much doctors pay for
malpractice insurance, and now they want control over how much they can
be held responsible when the folks they insure mess up.
I urge
you to support my campaign against Rep. Lance Horbach for the Iowa
House of Representatives and I urge you to fight against any
one-size-fits-all cap on non-economic damages. I will oppose any
legislation aimed at denying Iowans the right to hold doctors and
health care providers accountable when they negligently cause injury or
death, and I will oppose any attempt to limit the power of Iowa juries
by unfairly skewing the scales of justice in favor of corporate
insurance companies. I trust juries in Iowa are fair, and believe they
will continue to make the right decisions as to what amounts to
“justice.”
Andrew Smith
To learn more about Andrew Smith or to contribute to his campaign, go here.
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