To Reform or Not Tort Reform

Laws Capping Damages Hurt the Injured

Patients, Consumers, and Victims pay the price when Juries are Capped.

It is one of the most difficult questions for an injury lawyer to answer: “what is my case worth?”  So, if lawyers who do this work on a daily basis cannot answer it, how is a jury of 12 people (who probably are not lawyers) supposed to do it?  The reality is that a jury is the conscience of the community.  And their judgment about how much money would balance the losses to an injured person is always going to be subjective.

But that does not mean that anyone is well-served by putting “caps” on damages.

What does the jury do?

Caps on jury awards for money damages in injury cases are laws passed (usually by the State you live in) that limit the amount for pain and suffering or punitive damages.  “Pain and suffering” is the amount of physical pain and emotional suffering that a person endures as a result of an injury.  “Punitive Damages” are special damages ONLY awarded when the jury believes that the harm was knowing and/or reckless (as a result, they are very rare).  When a jury hears the evidence in an injury case, they hear about the incident where the person got hurt, then they hear evidence about the injury, the medical treatment, the doctors’ opinions about how the injury occurred and how serious it is.  They get a lot of information.

And every case is unique.  And after hearing all of that evidence, if they believe that the Defendant was responsible (by failing to obey traffic laws and causing a crash or failing to obey practice guidelines and harming a surgical patient), then they decide the amount of money balances out the past and future losses to the Plaintiff.  A Plaintiff who might not be able to bend down to pick up their grand child any more, or who will never be able to work again, or who has lost a loved one.

What are caps?

“Tort reform,” as it is called by groups that are trying to save money for Corporations and Insurance companies, includes a very crude and unjust method, putting a cap on the jury’s award.  This means that a person who was hit by a bus and now must use a wheelchair for the rest of their life will not receive a $3 Million award for all they have lost, but instead get whatever number the Law says: be it $1 Million or even $500,000.  Those are completely arbitrary amounts that have nothing to do with the facts of that person’s case.  And slashing the amount the person gets does not serve justice.

It also hurts some people more than others.  Consider the comparison between a husband and wife.  If only the wife works and was earning the family’s income when she was paralyzed, her lawyers can present evidence of those lost earnings and that number would not be ‘capped’ by a limit on Pain and Suffering damages.  So, the family will get the full amount of future lost income.  But if the husband was caring for the couple’s children and not earning and was paralyzed, there is no lost income to claim.  His value is much more difficult to define.  And a cap will slash that amount.  This is unequal and unjust.

Why is this News now?

Illinois has seen “tort reform” measures made into law in the past.  These laws do not “reform” anything.  Juries hear all the facts in a case.  Lawmakers do not.  Juries see the faces of the injured and of the Defendants.  Lawmakers do not.  The idea that these groups of 12 strangers are just passing out ridiculous amounts of money is just a product of media hype.  Every Defendant accused of negligence for serious and catastrophic injuries gets the best legal representation that Insurance and Corporate money can buy.  They are there at trial. They get to examine all the evidence before trial in “Discovery.”  They can offer money to ‘settle’ a case before trial.  There are really no surprises.

So, when they know that they will be forced to pay real money to compensate people for serious and life-changing losses, they want to change the rules.  They want to pass laws like the one being considered in Missouri.  There, a surprising political development has emerged.  A Christian religious group there is taking a stand against a Missouri proposal to cap Pain and Suffering verdicts at $500,000.  This is notable because conservative and Republican groups are often united in supporting pro-business proposals like Damages caps.

However, they are apparently making the same case that Injury lawyers have always made: these caps disproportionately harm the most vulnerable members of society.  And they do so when the person is already injured, already down, and has already lost.

What Damage do Caps cause?

The reality is that an arbitrary cap of even $1,000,000 has wide-ranging effects.  When the Insurance company for a hospital or a trucking company knows that even if a jury decided $5 million was fair to balance a family’s losses, they will never pay a fair value before trial.  So, all injured people, not just those who have to go to trial, will be faced with settlements that are not just.  And in serious and complex medical cases, where the costs to the Plaintiff’s lawyer can be in excess of $200,000, lawyers may simply be forced to not take cases and not file lawsuits when they know that after all the costs and the hundreds of hours of work, that an injured person might walk away with very little (especially after Health Insurers also get reimbursed for bills they paid out of a Verdict).

This is the real cost: people will lose their access to justice and the Court system.  If caps make it economically unfeasible for a private, Personal Injury lawyer to take the case, and believe that they will be compensated for all of the hours of work that will be necessary (because we do not get paid until we get a settlement or a verdict paid), then Corporations, Insurance companies, and Hospitals will escape justice.

It should be obvious that this is extremely dangerous.  Without the incentive to be safer, all companies will make more mistakes.  It is not because they are bad people or that they want to injure anyone.  But anyone who has worked in a large company knows: policies and protocols that are not enforced from the top will not be followed by everyone.  It only takes one medication error or one faulty lug nut to cause a catastrophic injury.

That is why the lawyers at Dwyer & Coogan, P.C. will always oppose caps that arbitrarily limit a person’s damages and take away justice from the Courts, juries, and the injured.  A justice system that serves the most vulnerable serves us all.