Why They Succeed Or Fail
The arguments for and against caps on non-economic damages are the same in every state, the only thing that determines the success or failure of these initiatives is the strength of the opposing lobbies and how recent events fuel the arguments of one side or the other.
“The momentum is driven by current events in particular jurisdictions,” said Sierpina, describing threats by physicians to leave trauma centers, obstetricians who refuse to deliver babies and surgeons who take month-long leaves of absence in protest over their insurance rates.
In Texas, the AARP, the National Citizens Coalition for Nursing Home Reform, and the Texas Advocates for Nursing Home Reform adamantly opposed the initiative proposed there, coming out in full force against it. They even delivered a 200-page publication to legislators explaining the negative impacts, but it wasn’t enough to trump party loyalties and business interests, said David Kennedy, chairman of the nursing home litigation group for the Association of Trial Lawyers of America, who practices in Sherman, Texas.
“The Texas Legislature, like so many, is now controlled by big business interests and the Chamber of Commerce,” said Kennedy. “I think it is pure politics that drove [the Texas proposal to cap non-economic damages.]”
Case in point, Kennedy said: It was physicians in Texas who “stormed the statehouse” to demand relief from high medical malpractice premiums. But in the end, they got no legislative fix, while other medical industries did.
“That tells you the ones who really control the Legislature were the big businesses, the Chamber of Commerce and nursing homes. Otherwise, they would have given some relief to the physicians,” Kennedy said.
Schuster said a proposal in Washington, D.C., to limit tort recoveries failed because of a strong trial lawyer lobby.
In Alabama, Taylor said an initiative failed because the nursing home lobby couldn’t use white-coated doctors to run interference for them. That was a mistake, he said.
Doctors were not involved in this campaign because the state already has tough medical malpractice statutes that limit damages – essentially, doctors are already covered by legislation, he explained.
“I think they’d have had a much better shot because doctors are more credible,” he said. “My impression is that doctors have it pretty much the way they want it now. It’s very difficult to get a big verdict against a doctor or a hospital in Alabama. They’ve had it the way they want it for a long time, so they don’t want to get out in front of current tort reform efforts.”
Taylor suggested colleagues battling these initiatives in other states stick to the facts and press the opposition for evidence that supports their claims.
“In Alabama, the first thing they said was, ‘We need this cap to control runaway jury verdicts.’ We sat down and said, ‘Show us a runaway jury verdict.’ There have been none in the last 10 years, since [the state’s] medical malpractice law got passed. The highest is one I got in a nursing home case, $7 million, a few years ago,” he said.
“So the next argument was, ‘We need to control the frequency of these lawsuits.’ We said, ‘Okay, show us all these lawsuits you’re talking about,’ and by their numbers, only about 90 were pending in the whole state. By our numbers there were 60 pending in the whole state. In Florida, there’s more than that pending in Tallahassee,” he said.
“Their arguments just didn’t fly,” Taylor continued. “They never presented any credible evidence, any evidence whatsoever, that the rise in premiums was because of payouts of lawsuits.”
Petosa encouraged colleagues in other states to focus on better care for residents.
“It begins and ends with the residents,” he said. “It’s a simple issue. I have parents, we have grandparents, aunts, uncles, we all know people who at some point in life may need care in a nursing home. We all want to know they will get the care they’re promised when they walk in the door, care to maintain their quality of life.”
Petosa recently spoke to a group in southern Florida made up of assisted living facility representatives. When he was introduced as a trial lawyer before his presentation, the audience booed him.
“I said, ‘You can boo me all you want. I’m not going to go away until you provide good quality care,'” he recalled. “I want my loved ones to pass away with dignity and quality of life.”
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