Attorney Groups Sue to Block Proposed Limits on Medical Lawsuit Fees
UPDATE 10/13/16: The Arkansas Supreme Court struck this measure from the November ballot (even though it will still appear on the ballot, no votes will be counted).
The Arkansas Bar Association (ABA) and another attorney-linked group have both sued to block Issue 4 that would limit attorneys’ contingency fees and set a minimum $250,000 non-economic damage award for medical malpractice lawsuits.
UPDATE 9/30/2016: Issue 4 supporters countered the Committee to Protect AR Families in their motion filed today, saying the group has no constitutional right to challenge the Arkansas Secretary of State’s approval of petition signatures. Their motion asserts that voters and taxpayers, by voting, are the ones who can legally challenge the sufficiency of ballot measures.
UPDATE 9/28/2016: In the Committee to Protect AR Families suit, Retired judge J.W. Looney, special master to the state Supreme Court, reported that all the original petition signatures could be disqualified as a result of a material defect — signature gatherers failed to certify criminal background checks for all paid canvassers, as required by a new state law. Looney also disqualified a number of signatures gathered by professional canvassing organization 3.0 LLC due to issues with proper certification. Looney also reported several hundred signatures that should be added.
UPDATE 9/14/2016: Health Care Access for Arkansas responded with a counterclaim that state election officials incorrectly tossed out some of the signatures gathered and submitted to put the measure on the ballot, but the response didn’t specify how many more signatures should be authorized.
UPDATE 9/9/2016: The Supreme Court has split (“birfurcasted”) the case, separating the sufficiency of the ballot title “because sufficiency of the ballot title is decided by this court as a matter of law.”
The ABA formed its own ballot question committee, Fairness for Arkansans, that sued to have the state Supreme Court to remove the issue from the November 8 ballot or block election officials from counting votes for the measure. Fairness for Arkansans says the proposal’s title fails to adequately describe the measure, which would “dilute a jury’s discretion,” among other problems. The group points out the measure creates an exception to a current constitutional prohibition on the Legislature enacting limits on awards for injuries resulting in death or injuries to persons or property.
The ABA’s attorney, who works on a volunteer basis, asked that the case be expedited so it can be concluded before November 8. The state Supreme Court originally set oral arguments for October 6 but has since canceled that date.
The ABA president told Arkansas Business the ABA’s House of Delegates had unanimously voted to oppose the measure without debate and past ABA presidents agreed, so Fairness for Arkansans’ statement of organization was formed Aug. 26. Denise Hoggard added,
“The American Bar Association looked at the … effect of putting caps on attorney fees, and what they found was that it served no legitimate purpose except to unlevel the playing field for the litigants and the people who need access to the courts.”
Issue 4’s sponsor, Health Care Access for Arkansans, responded to the suit through its attorney, Chase Duggar, who said:
“These attorneys profit from lawsuits for a living, so it’s no surprise to see them try the lawsuit tactic here, too. They want to prevent Arkansas voters from having a voice in how these lawsuits impact all of our healthcare costs. This lawsuit aims to protect these lawyers’ ability to maximize profits when going after our hospitals, doctors and other healthcare professionals.”
Duggar added that non-economic damages are damages not related to direct economic losses: “It’s also a category used by trial lawyers to excessively inflate verdicts and their fees,” he pointed out.
The ABA-sponsored suit is one of two brought against Issue 4 this election cycle. On September 1, the Committee to Protect AR Families and Col. Mike Ross, retired Circuit Judge Marion Humphrey, James Brooks, Adam Jegley and Martha Deaver also sued, calling for the measure’s removal or for votes to not be counted.
The second suit attacks the signature-gathering process, saying the measure’s sponsors didn’t actually collect enough valid signatures to put the measure on the ballot because they didn’t follow appropriate law when gathering those signatures. Like the initial suit, the second one says that Issue 4’s title “is materially misleading” because “it fails to convey an intelligible idea of the scope and impact of the Amendment,” and takes away a citizen’s right to a jury’s discretion on awards.
Duggar of Health Care Access for Arkansans responded to the second suit:
“This is the second desperate attempt in a week to stop Arkansas voters from having a voice in getting this inflation of health-care costs under control. We followed all the rules and took the proper legal paths to get the amendment on the ballot. Much like the lawsuits they file against doctors and hospitals, these lawyers sue on every issue they can think of, hoping anything will stick and pay off for them.”