Having had the privilege of trying many cases over the years, I have likewise had the privilege of meeting many Ohio citizens who are sitting as jurors for the first time. During jury selection, I often ask jurors if they feel there should be caps on damages in medical negligence cases. Many, if not most, potential jurors support the idea of caps. But the next question that I ask exposes how citizens really feel about caps. Typically, I will ask “what cap would you be comfortable with?” The usual response is that “it depends on the case.”
What these folks are really saying, at least in my mind, is (1) we have heard of runaway verdicts and we don’t like it (i.e., I am in favor of caps); and (2) however, I myself can be trusted to be fair and reasonable and a one-size-fits-all cap may preclude me from doing justice in a given case (i.e., the cap depends on the case). And that is the problem with caps: it takes away jurors’ right to decide what is fair in a given case.
We have all heard about runaway verdicts, though I would venture to say that they are much less common than people would expect. In fact, when I ask jurors about runaway verdicts that they personally are aware of, by far the most common response is the “McDonald’s Hot Coffee” case. That case occurred over 20 years ago in a desert 2,000 miles away from Ohio, so what else do you have? Not much, as it turns out. In fact, verdicts have overall been in decline as insurance-backed lawmakers and publicity machines like the U.S. Chamber of Commerce scare the public into believing that there is a malpractice crisis.
American courts have long been a rough-and-tumble place. Justice is never guaranteed and one side always loses. But the system itself is still the best in the world. I tell naysayers that there are plenty of places where they might enjoy a different legal system: North Korea, Iran, etc., etc. In fact, the vesting of legal rights on our citizenry, particularly the right to trial by jury, is one of the ways our Constitution promotes individual freedom and protects us from the transgressions of others.
In Ohio, tort reform legislation, promoted by powerful insurance interests in the State, provides for one-size-fits-all caps. Even worse, the legislation provides that jurors are not even allowed to be told that the cap is in place. So, by law, Ohio jurors are misled into believing that their award is sacrosanct when in fact it is subject to revision by some arbitrary cap. These caps are indeed arbitrary: there is no discretion afforded to jurors at all, the caps do not increase with inflation and they apply irrespective of the facts of the case (e.g., even a drunk driver who causes massive injuries is protected by the caps).
With elections coming up, politicians are again beating the drum for caps and other tort reform measures. In fact, the drum is really being beaten for donations as politicians try to curry favor with wealthy donors, like insurers, physicians and other special interest who have a vested interest in cheating injury victims out of fair compensation. Rep. Bruce Braley, a longtime champion for victims of medical negligence, opposes the most recent effort at tort reform, H.R. 5. His opposition, including some well-reasoned arguments about the role of the federal government that should appeal to conservatives and liberals alike, can be read here: http://www.huffingtonpost.com/rep-bruce-braley/patients-beware_b_1372840.html.