Does W.Va. Tort System Need Reform?

Jury Awards Should Be Respected

Donald M. Kresen

September 5, 2000

 

In a letter written to Thomas Paine in 1789, Thomas Jefferson described trial by jury as "the only anchor ever yet imagined by man, by which a government can be held to the principles of its constitution."

A jury is a truly democratic institution. It brings together a group of different occupations, of different educational levels, from different economic levels. Together, they consult, apply their individual experiences of life to the facts of the case, and reach a joint conclusion. In this way, the jury speaks for the entire community in defining the standards of acceptable conduct; it acts as the conscience of the community in determining guilt or innocence in a criminal case, or fault and responsibility in a civil case.

Under the guise of "tort reform," the jury system has been under persistent attack by the insurance industry, corporate interests, and some business and professional groups. Through well-funded lobbying and advertising programs, these groups seek to insulate themselves from public accountability, by making repeated and ill-founded claims that jury verdicts are "out of control," and the cause of any number of economic ills.

In 1986 the West Virginia Legislature enacted a law "capping" non-economic damages in medical malpractice cases at $1 million. The effect of this law is to limit jury awards, other than for financial loses such as medical expenses and lot wages, to that amount.

If a jury decides that an award greater than $1 million is appropriate to compensate a plaintiff for the loss of sight, for permanent paraplegia, for shortened life expectancy because of failure to diagnose cancer, or for the death of a loved one, or for a lifetime of chronic pain and disability, the law overrides the jury's judgment.

The constitutionality of this law will soon be reviewed by the West Virginia Supreme Court of Appeals.

The damage cap is an artificial limitation which carves out a privileged class in the American legal system, so that doctors, hospitals and their insurance companies are not fully accountable when a jury has found them to be at fault. And as every year passes, the damage cap becomes more unfair in its effect: according to a financial expert who testified in the case now on appeal, the value of $1 million in 1986 has been reduced by over 35% because of inflation, so that the cap is now the equivalent of less that $650,000 in 1986 dollars.

Doctors and insurance companies argue that a cap is necessary to control malpractice insurance premiums, and the insurance companies claim that they will pass on their savings on to the doctors in the form of lower premiums.

No credible evidence of these claims has ever been presented; in fact, all evidence shows that insurance companies have continued to raise premiums even where tort reform laws have been enacted.

A 1987 study by the Insurance Service Organization, the rate-setting arm of the insurance industry, found that savings from various tort reforms, including damage caps, were "marginal to non-existent."

Insurance is designed to protect individuals, including doctors, by spreading the risks associated with doing business over a large group.

Caps on damages do the opposite: they limit the responsibility of medical providers and insurance companies, and arbitrarily impose upon the most seriously injured malpractice victims the burden of medical errors.

Damage caps deny those most in need the full constitutional guarantee of a jury trial, in which the collective wisdom of a group ordinary and diverse citizens is trusted to decide if compensation is due and, if so, how much is fair based on all the facts.