Arkansans are about to see two strong interest groups battle for their votes, if a proposed constitutional amendment on medical lawsuits actually makes the general election ballot.
The proposal, Issue No. 4 among seven ballot questions voters may consider in November, would allow the Legislature to set limits on non-economic damages awarded in medical lawsuits. It would also limit attorneys' fees.
If approved by voters, the Legislature would be authorized to cap the amount of potential "pain and suffering" awards in medical injury cases. The cap could be no less than $250,000. The proposed amendment would also limit trial lawyer contingency fees to a third of the damages awarded, after expenses.
Obviously, the state's lawyers have a strong interest in the measure, as do those in Arkansas' medical community. Each side is putting up money to convince the public that theirs is the right side of the issue and best serves the public interest.
While it hasn't gotten as much attention as some of the other ballot questions, groups for the measure and against it are building sizable war chests. Collectively, the groups have already reported raising more than $1.6 million for the fight.
On Monday, the Arkansas Bar Association started legal action to try to keep the measure off the ballot entirely, filing a lawsuit in the state Supreme Court.
It asks that the measure be struck because the ballot title is misleading. If it can't be struck before ballots are printed, the lawsuit asks the court to order that votes not be counted.
Health Care Access for Arkansans successfully petitioned to get the issue to voters.
That organization -- made up of doctors, nurses, nurse practitioners, legislators and more -- gathered almost 93,000 valid signatures to secure a place on the ballot. They needed 84,859.
They couldn't even have circulated the petition without prior approval of the ballot language the bar association is disputing.
Attorney General Leslie Rutledge signed off on the lengthy ballot title, finding it "adequate as proposed," although she altered the popular name of the measure.
Issue No. 4 is officially "An Amendment to Limit Attorney Contingency Fees and Non-Economic Damages in Medical Lawsuits." She deleted an opening phrase that called the measure "The Lawsuit Reform Amendment of 2016," saying it was "partisan."
Ballot titles don't really reflect the full content of proposed amendments. This title, for example, is less than 400 words while the text of the amendment itself is almost four times as long.
Ballot titles are necessarily shortened to allow voters to read and react in the five minutes they are allowed in the voting booth, if other voters are waiting.
With the potential for seven ballot questions, the presidential race and all the down-ballot races for state and local office facing voters, that's not a lot of time.
The question is whether the ballot title accurately and impartially summarizes the provisions in the proposed amendment.
Fairness for Arkansans, a group the bar association created to oppose the measure, said in its lawsuit that the title is misleading.
Scott Trotter, the attorney for the bar association, said the ballot title has at least a dozen "flaws," including the lack of definitions of key terms in the amendment.
Trotter is no stranger to this sort of litigation. Over the years, he has challenged and defended different ballot issues in court.
He could have opted to challenge signatures to the petitions but said that route was too costly. He instead contends voters shouldn't be misled by an inadequate ballot title.
Chase Duggar, executive director of Health Care Access for Arkansans, greeted the lawsuit with the assertion that lawyers profit from lawsuits for a living.
"They want to prevent Arkansas voters from having a voice in how these lawsuits impact all of our health care costs," he said.
Ultimately, it will be up to the Supreme Court to decide whether the ballot title is adequate -- and whether voters will get to weigh in on the question.
Commentary on 08/31/2016