State justices say measure to cap medical suit damages inadequately defined

The writers of a tort-overhaul amendment to the state constitution failed to adequately define "critical" parts of the measure, the Arkansas Supreme Court said Thursday in its decision striking down the proposal.


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Because counties already arranged to have their ballots printed for the Nov. 8 election, the proposal still will appear before voters on Election Day, but the Supreme Court ruling means the secretary of state's office won't tally the results.

The amendment, which was designated as Issue 4, would have mandated that the Legislature set a cap for "non-economic damages" of at least $250,000 in medical lawsuits. In a unanimous ruling, the Supreme Court said that the term "non-economic damages" -- often described as monetary relief for pain and suffering -- was not properly defined for voters.

The justices did not address other provisions of the law. The proposed amendment also would have prohibited winning attorneys from charging fees of more than a third of total damages and would have allowed the Legislature to define terms such as "medical injury" and "health-care professional."

[DOCUMENT: Read the court's full opinion]

The proposed amendment was backed by the Health Care Access for Arkansans ballot committee, which wrote the proposal and collected more than $900,000 in contributions from doctors, pharmacists and nursing homes to pay for gathering signatures and campaigning. Chase Dugger, a spokesman for the group, Thursday expressed disappointment in the decision, but did not say if they would ask for a rehearing.

"We will continue to fight for tort reform," Dugger said in a statement. "Until then, doctors and hospitals will continue working in fear of trial attorneys seeking to line their pockets with limitless medical malpractice lawsuits that drive up health care costs."

Opponents of Issue 4 included the Arkansas Bar Association, the Family Council and nursing home patient advocates. They argued that it limited juries' ability to set damages that were fair to victims and to punish medical providers for malpractice.

"The court today upheld the fairness and integrity of the ballot process in Arkansas," said Jordan Johnson, a spokesman for nursing-home patient advocates who challenged the proposal. "We will remain vigilant on future attempts by the corporate nursing home lobby to restrict Arkansans' right to a trial by jury."

Johnson's group, the Committee to Protect AR Families, filed one of the two lawsuits challenging the amendment. The group's lawsuit alleged that its backers violated rules during the petitioning process and inaccurately described the amendment in a short ballot title. A second lawsuit by the Bar Association also challenged the ballot title.

The court issued two unanimous opinions Thursday, one for each lawsuit, written by Justices Josephine Hart and Paul Danielson. The court invalidated the ballot title and ordered Secretary of State Mark Martin's office not to tally the election results.

"We have disapproved the use of terms that are technical and not readily understood by voters, such that voters would be placed in a position of having either to be an expert or in the subject or having to guess as to the effect his or her vote would have," Danielson wrote in his opinion.

The ballot title and popular name of the proposal -- An Amendment to Limit Attorney Contingency Fees and Non-Economic Damages in Medical Lawsuits -- was previously approved by Attorney General Leslie Rutledge's office on April 20. A spokesman for Rutledge said she disagreed with the court's decision and "believes that both of these [casino and tort reform] measures met the standard of being impartial, honest and not misleading to the voters."

The justices did not address concerns raised about the petitioning process by the Committee to Protect AR Families, which filed its lawsuit after reviewing the 131,687 signatures gathered over the summer. In September, the high court appointed retired Circuit Judge J.W. Looney to review alleged violations. Looney's report said the justices could chose to disqualify all of the signatures gathered by paid canvassers because backers of the amendment had failed to certify that they conducted background checks on the workers.

The justices declined to address the merits of any other allegations, which they said were moot because they were already choosing to strike down the amendment.

In concurring opinions, Chief Justice Howard Brill and Justice Rhonda Wood said they "agreed with the general policy reason" of Hart's option. They did not offer any disagreements.

A Section on 10/14/2016

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