Our Voices Arkansas

The Voices of Grassroots Conservatives Across Arkansas

Oct 3, 2016

Vote “YES” on Medical Malpractice Tort Reform (Issue 4)

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). All the misinformation circulating around Issue 4 makes it difficult to see the underlying proposal clearly. Issue 4 is the beginning of badly needed medical tort reform in...

by OurVoicesAR

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yes-med-tort-reformUPDATE 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).

All the misinformation circulating around Issue 4 makes it difficult to see the underlying proposal clearly. Issue 4 is the beginning of badly needed medical tort reform in Arkansas, so (understandably) the personal injury attorneys (and the Arkansas Bar Association) are fighting mightily against it.

This proposal would limit personal injury attorneys from charging more than 33 1/3 percent in contingency fees in medical malpractice cases (which is a customary charge), and also sets a minimum $250,000 amount for noneconomic damages in those cases.

Noneconomic damages are those hard-to-quantify damages like “pain and suffering,” mental anguish,” and “loss of companionship” that some unscrupulous personal injury attorneys abuse to increase the overall dollar amount a case is worth.

Issue 4 would set a minimum of $250,000 for those damages, and allows the Legislature to set an upper limit. (Issue 4 would not alter economic damages, and does not apply to workers compensation cases at all.) Opponents who tell you the $250,000 is “the cost of a life” are not being honest with you — the $250,000 figure is a minimum, not a maximum amount.

Personal injury attorneys can currently charge any amount, as long as the client agrees. So, limiting contingency fees to 33 1/3% ensures that the injured party does, in fact, receive the majority of whatever monetary amount may result from a lawsuit (rather than the attorney getting most of it). This limit works together with the provision to set a minimum for noneconomic damages to prevent attorneys from unreasonably running up the dollar amount of a case with their only aim being to obtain a bigger paycheck once the case is finished.

The Arkansas Bar Association and its personal injury attorneys who would be directly affected by Issue 4 complain this measure “takes the authority of the jury” away. Again, they are not being entirely honest — this is not the only “limit” on a jury within our legal system, as numerous circumstances serve to legally limit juries (including the right of a judge to completely over-rule jury verdicts).

Numerous studies show that limiting these fees and damages has a positive effect on medical malpractice insurance for health care practitioners (drives insurance premiums down) and helps to allow doctors to focus on caring for patients, not ordering more and more tests to try to protect themselves from future lawsuits.

The Arkansas Project has concluded that Issue 4 will help provide greater healthcare access and have a positive effect on Arkansas’ economy.

We vote “YES” on Issue 4 because Arkansas badly needs tort reform, and medical malpractice is a great place to begin.

One response to “Vote “YES” on Medical Malpractice Tort Reform (Issue 4)”

  1. Matt Bishop says:

    Let’s analyze the “misinformation”, shall we?

    1. “the beginning of badly needed medical tort reform in Arkansas” – There is no evidence it is badly needed. We are taking a power from a jury of citizens and handing it to the legislature based on buzzwords, not facts.

    2. “Noneconomic damages are those hard-to-quantify damages like “pain and suffering,” mental anguish,” and “loss of companionship” that some unscrupulous personal injury attorneys abuse to increase the overall dollar amount a case is worth.”

    This is a severely fact deficient claim. The proponents of this issue cite not case that is an “abuse” of this, nor do they say why asking for an elderly person injured in a nursing home to be compensated for their pain and suffering is “unscrupulous”. Or why a grandmother who can no longer pick up her grandchildren due to a medical error or a faulty drug asking for pain and suffering damages is unscrupulous. If this is hard for a jury to quantify after hearing all the facts, why is it a good idea for the legislature with none of the facts to quantify it?

    3. “Opponents who tell you the $250,000 is “the cost of a life” are not being honest with you — the $250,000 figure is a minimum, not a maximum amount.” Why would the nursing home proponents of Amendment 4 expect the legislature to set it any higher than $250,000?

    4. “So, limiting contingency fees to 33 1/3% ensures that the injured party does, in fact, receive the majority of whatever monetary amount may result from a lawsuit (rather than the attorney getting most of it). ”

    Since most ordinary people in nursing homes or injured by medical malpractice can’t afford to pay an attorney hourly, like the nursing home, hospital or pharmaceutical company, can we are only limiting one side’s ability to pay their attorney. Why not put a cap on both sides’ attorneys fees? And actually, the bulk of the award will go to reimburse the insurer or Medicare for the medical bills they’ve paid in most of these cases.

    5. This limit works together with the provision to set a minimum for noneconomic damages to prevent attorneys from unreasonably running up the dollar amount of a case with their only aim being to obtain a bigger paycheck once the case is finished.

    This makes zero sense. The damages are based on the injury. The jury decides their value. Why should the legislature having never heard the facts of the case? The only one with incentive to delay a case and make more money is the defense, which is paid hourly.

    6. “Numerous studies show that limiting these fees and damages has a positive effect on medical malpractice insurance for health care practitioners (drives insurance premiums down) and helps to allow doctors to focus on caring for patients, not ordering more and more tests to try to protect themselves from future lawsuits.”

    This claim keeps being made, but the claimants never cite their studies. Arkansas premiums, without this nursing home protection bill, have remained consistent for some time. This bill will not change the cost of healthcare or access to providers. We’ve had 40 years of damage caps in states all around the country, and there’s just not the evidence that they come close to giving us any of the grandiose rewards their proponents have repeatedly claimed.

    This is a bill backed primarily by nursing home interests. The same nursing home interests who bribed a judge to lower a verdict against them just a year or so ago. Before we start throwing out, without evidence, the term “unscrupulous” let’s be clear on who benefits from this amendment. It’s not Arkansas voters or healthcare recipients.

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