| 01/09/2005 |
| Liability reform: Find solutions, not scapegoats |
| By: Attorney James V. Pyrah, Cardoni and Associates, LLC, Kingston |
|
At a recent economic conference, President George
W. Bush participated in a panel discussion on the topic of lawsuit
abuse.
The purpose of the conference was to highlight the president's agenda, including liability reform. The cornerstone of any liability reform legislation is a "cap," or statutory limitation, on the amount of pain and suffering damages that a jury can award to an injured plaintiff. The proposed cap has created a firestorm of controversy in Pennsylvania and throughout the country. In calling for a cap and other liability reforms, President Bush has said that "justice ought to be fair" and that "those who have been hurt ought to have their day in court." It's hard to understand, however, how the president's proposed cap on damages achieves these goals. Under the existing system in Pennsylvania, an injured plaintiff is permitted to file a lawsuit as a result of a defendant's conduct. Recent rule changes require medical malpractice cases to also include a certification that an appropriate medical expert has reviewed the allegations and that they have merit. If a lawsuit does not allege a proper cause of action, lawyers for the defendant can move to have the suit dismissed. Otherwise, both parties are permitted to engage in discovery to determine whether the plaintiff's allegations are supported by evidence. After the discovery phase, defense lawyers can again ask for a judicial review of the merits. If a plaintiff's claim survives this judicial review, the case is allowed to proceed to trial. After the plaintiff presents all of his or her evidence, defense lawyers once again have an opportunity to ask a judge to dismiss the case on legal or factual grounds. If the case is not dismissed, the controversy is then placed in the hands of a jury for resolution. Both parties can appeal from perceived errors of law that occur during the process, but there is generally no appeal from the findings of fact made by the jury. The inherent fairness of this judicial system has served our country for more than 200 years and is arguably mankind's most effective means of peacefully resolving disputes. Proponents of reform inevitably point to large monetary awards as evidence of what the President describes as "a judicial system run amok." The point that is often overlooked in the debate, however, is that most awards rendered in personal injury or medical malpractice lawsuits are the product of impartial jury deliberations. Instead, trial lawyers are made the scapegoats, even though in every case, at least one trial lawyer is actively working to prevent or, at least, reduce the award. Juries return large verdicts, not trial lawyers. In every case, those juries are selected and agreed upon by the parties, through their lawyers. Throughout our history, we have relied on the constitutional right of trial by jury to safeguard our individual liberties. Statutory caps on damages represent a blatant attempt by government to take the fact-finding prerogative away from the jury. As a society, we trust a jury to make the life and death decision in a capital punishment case. Why are liability reformers unwilling to trust a jury to fairly compensate an injured plaintiff in a medical malpractice or other tort case? In comments at the recent Economic Conference, outgoing Secretary of Commerce Don Evans hinted at the answer. When considering how lawsuits affect business, Secretary Evans said, "What we ought to be doing is figuring out ways to lower risk and increase rewards." There you have it. Damage caps limit a jury's ability to hold a defendant accountable for wrongdoing. Without the threat of a jury holding them fully accountable, the risk is lowered and big business is free to chase profits while trampling individual rights. The United States Constitution guarantees a right to a jury trial, but, if a powerful lobby like the American Medical Association can control and define jury verdicts, this uniquely American safeguard of individual rights will be weakened. Ours is a system where individual citizens, empanelled as jurors, have the power to hold wrongdoers fully accountable. Any attempt to limit or control a jury's ability to perform this most democratic of functions is a step backwards. Tort reformers also point to increased health care costs due to the so-called "defensive practice of medicine." In my view, if this practice exists, it is a small price to pay to ensure that each individual is receiving the best and most appropriate care. Who among us would not rather have that extra CAT scan or MRI if there were even the slightest chance the result would contribute to a more accurate diagnosis "We want the legal system to be fair and balanced", President Bush declared. I'm sure that is the same goal the founding fathers had when they included a right to trial by jury in the Bill of Rights over two hundred years ago. What could be fairer than an impartial jury - one that is not defined or controlled by special interests? What could be more balanced than a system where each party has full access to competent legal representation? Like rebellion, a little reform now and then is a good thing and can be necessary. The process, however, should be about finding real solutions, not scapegoats. |