Although the Seventh Amendment of the Constitution gives us all the right to hold wrongdoers accountable for negligence, tort reform laws continuously strip victims of that right. Now, after decades of advocating strong medical liability protections, comprehensive tort reforms will become law in Iowa.
Iowa Gov. Terry Branstad has signed a bill that will take effect July 1, 2017. Here are some of the reforms included in the legislation.
Limits noneconomic damages—awards that compensate for intangibles such as pain and suffering—to $250,000 in most cases. The cap will not apply in cases where the jury determines the care resulted in substantial or permanent loss or impairment of bodily function, substantial disfigurement, or death.
Establishes stronger expert witness standards. The law requires that expert witnesses be licensed and in good standing in the same, or a substantially similar, field as the defendant. The witness also must have been in active practice or academia within the five years before the incident in the lawsuit occurred.
Requires a certificate of merit in all medical liability lawsuits. Plaintiffs will need an expert witness to certify that the standard of care was breached and explain how the standard was breached. This must happen within 60 days of the defendant’s response to the initial notice that a lawsuit was filed and before discovery starts. Otherwise, the lawsuit will be dismissed and cannot be refilled.
I know of no better way to show the consequences of tort reform than through the story of Frank Cornelius, an insurance lobbyist in the 1970s.
Cornelius helped persuade the Indiana Legislature to place a $500,000 cap on medical malpractice awards for pain and suffering. He argued successfully that such limits would reduce health care costs and encourage physicians to stay in Indiana. That was 1975.
Ironically, in 1989, Cornelius became a victim of his own success after he underwent routine knee surgery. After his surgeon ignored numerous complaints of severe pain, Cornelius consulted a second surgeon, who diagnosed a degenerative nervous disorder caused by trauma or infection associated with the surgery. A few months later, Frank’s left leg was further injured when a physical therapist misread instructions on a medical machine and shot a large current of electricity through the already injured leg. In August 1990, Cornelius had another medical procedure, but the surgeon used the wrong instrument and pierced the main vein from his leg to his heart. When another physician tried to save Frank’s life, he punctured Cornelius’ left lung.
As a result of medical malpractice, Frank Cornelius was subjected to a life of pain at the age of forty-nine. He was left wheelchair-bound and on a respirator and morphine drip. Medical bills and lost income totaled more than $5 million, yet he only managed to collect the maximum $500,000 capped damages that he had earlier helped become law.
In Crushed By My Own Reform, penned by Cornelius and published in the New York Times on October 7, 1994, Frank rued the success of his work.
In the article, Cornelius pointed out that the claimed benefits of the so-called reforms never materialized. He said even with the damage limitations in place, health care costs in Indiana climbed.
“Doctors and insurers have spent millions propagating the myth that America is awash in unjustified malpractice suits and crazy jury verdicts… Damage caps are arbitrary, wholly disregarding the nature of the injury and the pain experienced by the plaintiff.” Cornelius concluded by saying, “Medical negligence cannot be reduced simply by restricting consumers’ legal rights. That will happen only when the medical industry begins to effectively police its own. I don’t expect to see that day.”
Cornelius didn’t see that day – he died penniless shortly after the article was published. But, his story serves as a reminder that restricting victims’ rights and shielding corporations from liability or damages will do nothing to improve health care or safety.
While states like Iowa have taken action, efforts to pass federal reforms have repeatedly failed—and experts say that’s unlikely to change anytime soon. Although this is great news, the fight is not over. They won’t give up; and neither should you.
The idea that tort reform is good for the “people” is a farce. Tort reform makes all of us less safe. By placing limits on amounts that wrongdoers are required to pay, state legislatures remove the incentives for corporations to put safety over profits. They also disable juries from being able to properly compensate the victims. Any attempt to take power away from a jury is an attempt to take power away from citizens. When tort reform bails out irresponsible corporations, doctors, and hospitals, it closes the courthouse doors to victims, undermines our constitutional protections, and leaves taxpayers holding the bill.
What happened to Frank Cornelius could happen to any number of us. If you find yourself or a loved one in the same tragic predicament, do you want a system where wrongdoers are held accountable for their actions, or where they are allowed to evade the consequences of their wrongdoing all for the sake of profits?
Justice is not for sale! We must voice our opposition to our legislators. We should demand safety, accountability, and transparency. We should not relinquish our Constitutional Rights.
All victims deserve the right to tell their story; to exercise their right to trial by jury under the Seventh Amendment. At Lawsuit Financial, we will continue to educate the public about this serious threat to justice until all Americans see the reality of tort reform.
Mark Bello has practiced law for 40 years. He is currently the CEO and General Counsel of Lawsuit Financial Corporation, a pro-justice lawsuit funding company, and the author of the legal thriller “Betrayal of Faith” available on major online book store sites.
Attorney, certified civil mediator, and award-winning author of the Zachary Blake Betrayal Series. Mark Bello is also a member of the State Bar of Michigan, a sustaining member of the Michigan Association for Justice, and a member of the American Association for Justice.