I sometimes worry that my friends on the right are so passionate about tort reform primarily out of disdain for trial lawyers. A disdain stemming in no small part from the fact that the trial lawyers primarily support Democrats with their political contributions. But is that really any reason to fight so hard for tort reform?
If the brand of American conservatism espoused by the GOP really is about individual freedom and responsibility, why is it that the government should need to step in and limit the awards handed out by juries? Juries, after all, are comprised of individuals.
It is possible to argue that medical malpractice is an area where limitations on jury awards may make sense. Medical issues often involve matters of life and death in addition to the fact that medical science has not yet conquered many common diseases. This combination could make some cases very difficult for juries to distinguish actual malpractice from the fact that we just can't cure everything.
Current law already limits noneconomic damages in malpractice cases, Walker seeks to apply this limit to cases involving long term care facilities. While long term care is related to medical care, it's not exactly the practice of medicine. Long term care would seem to be a setting where juries could accurately assess the responsibility of the parties and award appropriate damages. Is there any evidence that they are unable to do so here in Wisconsin?
Then there's this baffling passage from the Legislative Reference Bureau's analysis of Walker's tort reform bill:
The bill provides that a health care provider is not guilty of the crimes of causing the death of, or bodily harm to, an individual by negligent operation or handling of a dangerous weapon, explosives, or fire, if the health care provider is acting within the scope of his or her practice or employment.So if a doctor prescribes two sticks of TNT and you blow yourself up, he's not guilty of a crime?
Finally, there's the question of jobs, which Walker has said is his top priority. If in fact state laws limiting noneconomic damages against long term care facilities attract those types of businesses, do you think they will attract facilities that provide relatively high quality or a relatively low quality care? Which type of facility has more to gain by such a law? At the very least there is the potential for primarily poor performers to be lured by the cap on damages. Jobs with these employers may not be the type we should be actively seeking to bring to Wisconsin.
I support Governor Walker and wish him success. I'm open to any convincing argument for this tort reform bill, but I haven't seen one yet. With the looming budget problem and continued economic weakness, I worry that the Governor may have miscalculated by including this bill as part of his special early agenda.