Personal Injury Law

Calls for Malpractice Reform Ignore the Constitution

By Steven M. Levin and John J. Perconti

Lawyer bashing and jury ridicule have been commonplace in the recent public discussion about the civil justice system. Certain special interests continue to propagate the belief that ?reforms? need to be enacted to improve the system of justice across the country. Most perplexingly, this call for action is done in the name of the Constitution?a perversion of the document at direct odds with the clear intention of our Founders.

Ken Connor, the President of the Center for Just Society eloquently explained how these political calls for malpractice reform seemingly ignore the 7th Amendment to the Constitution which protects the rights of citizens to jury trials in civil cases. On top of that, the proponents of this ?reform? view apparently find little stock in the 9th and 10th Amendment protections that limit federal power and ensure that individual citizen rights and state control are preserved and respected.

Of course the rejection of Constitutional principles is even more disappointing in that it is motivated by efforts to protect wrongdoers from accountability at the expense of the injured victims and their families. Recently introduced legislation in the U.S. House of Representatives, known as the HEALTH Act (H.R. 5) is the latest incarnation of this problem.

Ken Connor summarizes the bill as ?a federally imposed, top down, one-size-fits-all, special-interest driven emasculation of fundamental constitutional rights, turning victims of medical malpractice and dangerous drugs into constitutional eunuchs.?

The new proposal has a large scope?it applies to medical malpractice claims, nursing home claims, and suits against insurance companies. It includes arbitrary caps on non-economic damages, and shortens the statute of limitations on many acts of negligence. It also eliminates joint and several liability and raises pleading standards. These changes would essentially make it harder for victims to win cases and, even if they are won, harder to collect the entire damage award reached by the jury. Many of these changes preempt state law, overriding the will of state legislators and voters.

Full post as published by Illinois Medical Malpractice Blog on January 29, 2011 (boomark / email).