Assault on Public Safety


Companies readying a new product for market—be it an automobile or a prescription drug, usually test to ensure the safety of their wares. Every so often, the tests reveal that the product isn’t entirely safe. Most of the time, consumers won’t be harmed. But, to make the product safe 100 percent of the time will require a much larger investment from the company. The firm will then crunch the numbers. Is it worth the extra cost? To determine the answer, it will look at the effects of bad publicity if the public becomes aware that the product has problems. The company will study how many could be affected to arrive at a sense of the potential damages if victims sue. In this the company is at a disadvantage. Juries are unpredictable. Faced with the real stories of how a defective product ruined a person’s life, a jury could seek to punish the company for allowing something unsafe on the market, or try and compensate, for example, the emotional damage to parents forced to care for a paralyzed child. The unknown part of the equation—what the jury will award—forces the company to spend the extra money to add greater safety. This is just one reason why the jury system is a fundamental pillar of our society. It operates as a crucial check in favor of consumers and against the necessarily bottom-line nature of a for-profit corporation. The restraint juries exert on the system doesn’t just impact products, it extends to all kinds of services from doctors to telephones. House Joint Resolution 3 and House Bill 4 remove this check by diminishing the power of a jury to decide.

HJR 3, a constitutional amendment, imposes a $250,000 cap on noneconomic damages for medical malpractice cases: They include past, present, and future physical pain and suffering, mental anguish, loss of consortium, disfigurement, loss of companionship and society, and physical impairment. Economic damages reflect loss of income and medical expenses. The constitutional amendment particularly penalizes women that choose to work in the home since they can’t show lost income. It also can treat entire families as a single unit: a family of four would not receive up to a million dollars, only up to $250,000. If HJR 3 passes the Senate as is, and voters approve its change to the constitution in a stealth election scheduled for September, the House, beginning next session, will be able to impose similar caps on any area of tort law with only 90 votes.

A true-life horror story out of Beaumont illustrates just how vile this legislation could be. Patricia Taylor, a 35-year-old registered nurse and mother of two small children went to the doctor complaining of blurred vision in her right eye. Doctors misdiagnosed Taylor’s problem as a tumor in her pituitary gland. During the surgery, they removed what they thought was a tumor, sent it to a lab that mistakenly confirmed the diagnosis, and then removed her entire pituitary gland. As a result of the surgery, Taylor had a stroke. Brain damage and her missing pituitary gland led to constant and intense hunger pangs and loss of most of her speech. No matter how much she ate, her hunger was never assuaged. Taylor literally screamed night and day for food. Her husband had to remove the children from the house while a grandmother cared for Taylor. The stress of caring for Taylor caused her husband to have a heart attack. Prior to the surgery, Taylor weighed 130 pounds. Four years after the surgery, she had ballooned to 575 pounds. At that weight, Taylor had a heart attack and died. A jury awarded the family about $30 million and the case was settled on appeal. The lab that ruined Taylor’s life went out of business. Under the HB 4 and HJR 3 that passed out of the House, a jury could not award much more to the family than $250,000 in noneconomic damages.

But the tort deform the House passed does not stop with damage caps. The massive 96-page HB 4 strives to stop or stall civil action in so many ways it’s impossible to enumerate them all here. To convey a sense of the cynicism behind it, one provision of the bill forces plaintiffs first to seek redress from any applicable state agency before suing a company. The tort reformers know that another pillar of our civil justice system is government regulatory agencies. But already starved of cash and hopelessly compromised by lobbyists, state agencies are ill equipped to do anything but slow or kill the interests of justice. Another goal here is to defund the Democratic Party, a major beneficiary of trial lawyer donations. The bill would achieve this objective in numerous ways. It would limit attorneys’ fees in class actions; reduce interest on judgments; force losers and even winners in lawsuits to pay if they rejected a settlement in the range of a final judgment; spread out payments to attorneys; and simply delay the process so it lasts decades.

Politicians, both Democratic and Republican, who voted for HB 4 and/ or HJR 3 delude themselves when they assert this is just a battle between two wealthy interests: trial lawyers and business. —JB