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Tennessee Tort “Reform”: Calculating the Incalculable

If a patient dies because of medical malpractice, a person loses her mobility because of a reckless driver in a motor vehicle accident, or severe injury is suffered because of a defective product or device, one thing is certain: A jury can tally the medical bills and lost earnings, but it’s impossible to tally the losses that matter even more – noneconomic damages like pain and suffering.

For that reason, we leave the question of noneconomic damages to juries. Only jurors, after they have heard stories of loss, are in the best position to determine what those losses are worth in dollars and cents.

But a proposal by Tennessee Governor Bill Haslam, House Bill 2008, looks to take that decision away from juries. If passed, the bill would cap noneconomic damages at $750,000 and punitive damages at $500,000, or two times the amount of compensatory damages awarded (whichever is greater). Damages for certain catastrophic injuries would be capped at one million dollars.

The Decades-Long Push for Tort Reform

Beginning in the mid-twentieth century, “tort reform” became a significant issue of public debate in the 1980s. In just two years (1985 and 1986), 41 states passed tort reform statutes that limited liability in civil lawsuits. Today, the debate continues at both the national and state levels, impacting health care reform and budget discussions.

Proponents of tort reform claim that it would save millions of dollars, reduce the cost of liability insurance, and protect professionals and companies from frivolous lawsuits. Most tort reform bills focus on medical malpractice and cite soaring malpractice premiums that are said to push physicians out of practice.

Governor Haslam has not padded his push for tort reform with medical malpractice language. Instead, he focuses on limiting products liability claims to keep Tennessee manufacturing companies competitive. However, the bill does not only focus on manufacturing-based products liability claims. It covers all civil tort actions, including medical malpractice, nursing home negligence, truck accidents, toxic tort cases and many other types of personal injury cases.

Proposed Cap on Noneconomic Damages

Tort reform does not seek to limit economic damages. Economic damages cover the actual financial losses that a plaintiff suffered or will suffer, including medical expenses, property damage and loss of income. Noneconomic damages, on the other hand, are subjective. They allow for financial recovery for pain and suffering, emotional distress, loss of enjoyment of life, loss of consortium and other unquantifiable losses. Noneconomic damages are particularly important in wrongful death cases, where economic damages are insignificant when compared to the immense emotional trauma that families face when a loved one is lost.

Under House Bill 2008, “health care liability action” damages are capped at $750,000 per occurrence, while other personal injury damages are capped at $750,000 per plaintiff.

Proposed Cap on Punitive Damages

Punitive damages punish defendants after reckless or malicious actions. While not commonly rewarded, punitive damages can dissuade companies and individuals from causing future harm.

House Bill 2008 caps punitive damages at $500,000 or two times the total amount of compensatory damages (economic and noneconomic damages) awarded. It does not apply to cases involving felony actions or drunk driving (or driving under the influence of drugs).

Tort Reform’s Impact on Injured Individuals and Families

Many individuals view tort reform favorably until they suffer an injury or lose a loved one. It’s only then that they recognize the impact that a serious accident can have on someone’s life. During testimony before the Tennessee House Judiciary Subcommittee, a mother and father told of their five-year old daughter’s routine tonsillectomy gone horribly wrong. Due to medical malpractice, they lost their daughter to what should have been a simple procedure. Their child obviously did not have any income. Besides medical bills and funeral expenses, the parents would have no other source of recovery other than noneconomic damages – and a lesser sense of justice served.

We trust juries as fact-finders. A jury’s sole job is to hear the case and come to a consensus about the facts. Juries are fully capable of deciding what a child’s life is worth in a tragic medical malpractice case, or any other type of case that involves serious injury or wrongful death. Should the legislature make this decision instead?

Proponents claim that tort reform will save money and protect physicians, manufacturing companies and others from frivolous lawsuits. Yet, it is unlikely that caps on noneconomic damages and punitive damages will lower the cost of manufacturing or healthcare. Medical negligence, not medical malpractice lawsuits, is the primary problem. Research study after research study has shown:

  • There are far fewer medical negligence cases than there are injured patients
  • Very few frivolous claims actually succeed
  • The increase in malpractice premiums was not caused by an increase in malpractice payouts

Tennessee House Bill 2008 is formally the “Tennessee Civil Justice Act of 2011.” Is this civil justice? If you believe that protecting patient safety is more important than protecting insurance companies’ bottom lines, you should say “no” to tort reform.