Suppose my mother had died of neglect or some other terrible lapse in a nursing home. This example is hypothetical for me, thank goodness, but not for everyone.
A ruthless, appalling, utterly cold-blooded argument could be made with pencil on paper that a hastening of my mother's death would have economically benefited her survivors, myself included. We would have spent less -- by a very considerable amount, at least by our family's standards -- on her care.
Keep that ghastly argument in mind.
There's a push to amend the state Constitution to limit non-economic damages, such as damages for pain and suffering, in lawsuits against medical care providers. Under it, the Legislature would set a cap on the maximum amount "of non-economic damages in a civil action for medical injury brought against a health-care provider." That dollar amount would not be allowed to exceed $250,000.
But the proposal doesn't stop there. The Legislature would get the power to "specify a maximum ratio of punitive damages to compensatory damages in a civil action for medical injury brought against a health-care provider."
This is where the ghastly part kicks in. Take my pencil and paper argument. Suppose a "ratio" is fixed and punitive damages are largely determined by the compensation for actual economic damage. Somebody could make a straight-faced -- if sociopathic -- argument that I suffered no economic damage whatsoever. After all, in pure dollar-and-cents terms, I benefited economically by my mother's early death.
In the real world, a jury would fudge as much as they could. My family would get something. But do we really want to pass a constitutional amendment that would force a jury to fudge to arrive at some justice, and limit the amount of fudging they could do?
And the proposal still doesn't stop there. Once the Legislature caps damages and decides what the punitive-actual "ratio" is by a simple majority, those numbers can't be changed by less than a two-thirds vote of each chamber. Once set, raising them at any point in the future would be nearly impossible.
The nursing home lobby, as of June, contributed $250,000 of the $313,000 received by the group that circulated the petitions to place this measure on the ballot. A nursing home chain contributed another $50,000. So nursing homes are responsible for at least about 80 percent of the money that's gone in to passing this amendment.
It's not a far reach for a cynic to suggest that an industry that can put in a quarter of a million dollars into just passing around petitions might get out of the state Legislature just about anything it wants.
Note that the amendment wouldn't apply just to nursing homes, either. It applies to all medical providers. So a young couple who loses a baby, for instance, to neglect would face the same kind of pencil and paper arguments.
Oh, the amendment would cap court awards of attorney's fees, too -- making it harder for people who didn't have a lot of money already to hire a good lawyer.
I won't dispute that the legal exposure of Arkansas nursing homes and other health-care providers is greater here than in some other states. I don't dispute that our litigious society drives up medical costs. I don't see the solution in going too far the other way, however -- and putting that over-extension into the state Constitution.
Why a constitutional amendment? Because controversial legislation that largely did the same things in 2003 got thrown out by state courts as unconstitutional. It took eight years, but by 2011 the state Supreme Court finished those provisions off.
There's the constitutional principle of separation of powers. That's a good principle. Letting 12 good people decide what's right in a particular case is a pretty good principle, too. This proposed amendment would tamper with both of those.
Politically, it's hard to imagine a worse time for this proposal than now. A former Faulkner County circuit judge was sentenced in March to 10 years in federal prison for bribery to reduce a multi-million dollar award against a Greenbrier nursing home.
Give the backers of this amendment credit. They don't lack for nerve.
Commentary on 08/06/2016