In the eyes of many, “tort reform” is thought of as a synonym for damage caps. It is true that arbitrary limits on damages are the most common and well-known aspect of most tort reform efforts. However, as any medical malpractice lawyer can attest, the other aspects of tort reform can be just as harmful to the rights of injury victims of all kinds. Damage caps affect plaintiffs after a favorable verdict has been announced. Other tort reform efforts seek to strike at plaintiffs even before that point, namely when the lawsuit is being filed and when the arguments are being presented to a jury.
Many tort reform packages proposed by legislators impose a combination of ideas, all of which work to the disadvantage of injury victims and the advantage of big companies and insurance interests. However, as each Chicago birth injury attorney at our firm typically argues, all of these efforts are absolutely unnecessary and virtually all clearly violate various constitutional protections. Constitutions divide power among three branches of government for a reason, because a separation of powers is deemed fundamental to our system of governance, at both the state and national levels. The judiciary is charged with interpreting laws and implementing a system to actually adjudicate disputes. When the legislative body seeks to encroach on that function, the effort has to be stopped. All forms of medical malpractice “reform” are unnecessary and unconstitutional encroachments into the sphere of the judiciary.
That is exactly what one state court recently determined when it struck down a tort reform provision. The Arkansas Supreme Court ruled last week that narrow requirements about who is allowed to testify in medical malpractice cases constituted an unconstitutional violation of the separation of powers doctrine. The particular provision in question allowed only those doctors who were of the exact same specialty as the defendant to testify in these cases. This had proven to be particularly burdensome, because some courts (and defense attorneys) used the law essentially as a loop-hole to get meritorious claims thrown out of court. It is often very difficult to get an expert witness with the exact same credentials to testify, and there is ambiguity concerning the degree of similarity sufficient to meet the law’s demand.
Fortunately, the high court in this state rightly identified that it is not the business of the legislature to make blanket requirements on the witnesses necessary to allow a legal matter to move forward. The functioning of the court system in this regard must be left to the courts themselves.
In any event, it is clear that this law-and others like it-are pushed not for their fairness, but as yet another way for big interests, like the medical lobby and insurance companies, to keep more money in their pockets. The whole point of a jury system and adversarial trial process is to root out truth. The expertise of medical witness clearly plays a role in that process. But, if an expert truly is not capable of speaking intelligently on a topic, then that weakness can be fully exploited by a defense attorney when explaining to a jury why the expert’s analysis is incorrect. There is no logical reason to cut the process off beforehand and not even allow that witness to testify. But tort reform efforts are not about logic. Instead, they are based on chronic defendant’s desire to have shortcuts to avoid having to defend themselves altogether, even when their actions cause significant injury to others.
See Our Related Blog Posts: