JOHN BRUMMETT: The issue at issue

Proposed Issue 4, a constitutional amendment that may or may not be a ballot decision for Arkansas voters on Nov. 8, would do two plain yet profound things.

It would take away legal rights from regular persons who allege harm to themselves by elements of the medical-care industry such as nursing homes, hospitals and doctors. Thus it would anoint those providers with special constitutional protections against the full legal liability applied to everyone else.

And it would transfer authority from one presumably separate but co-equal branch of government, the judicial, to another, the legislative. It would do that by saying that the judicial branch is in charge of rules for state-court lawsuits except for those involving the aforementioned parties, for which the Legislature will define terms and set caps.

Nursing homes are behind this initiative. They have been distressed over the last couple of decades by activist litigation in behalf of residents. They consider that activist litigation to be exploitation by lawyer predators.

The problem for them is that their business model would be much more efficient--and their ability to offer themselves for sale, if they were so inclined, a much more manageable transaction--if they simply could better budget for legal liability.

Right now a human mistake could be made in a nursing home in the care of a sweet little grandma, frail of body and confused of mind, and a lawyer could bring suit. A jury, taking emotional offense at the harm brought to one so dear and helpless, could return an out-of-sight judgment.

A nursing home can't always count on a Judge Mike Maggio to reduce the amount of a jaw-dropping jury award while--perhaps coincidentally--a political operator like Gilbert Baker gets a slew of political action committees formed to which the defending nursing home owner may make contributions to the judge's looming campaign for higher judicial office.

Basically, Issue 4 provides that a plaintiff could sue a medical provider for the full range of actual economic damages now provided, but that, on "non-economic damages," the Legislature would be authorized to set a cap of no less than $250,000 as periodically adjusted for inflation.

Beyond that, the amendment provides that a lawyer representing a plaintiff in a medical malpractice suit could not contract for his services on a basis by which he would get a fee contingent upon winning that would be more than a third of the award.

The theory apparently is that nursing homes would get sued less often and less frivolously if lawyers weren't enticed by the opportunity to roll the dice on big bonanzas.

These are vital moral questions suitable for a political decision. But, first, the Arkansas Bar Association has opted to file a challenge to the ballot title for Issue 4.

Thus the Bar seeks to get the matter disqualified from the ballot. The ballot title is the text voters would see on the voting device, and perhaps read.

This direct action filed by the Bar for expedited ruling by the state Supreme Court was prepared by Little Rock lawyer Scott Trotter. He likes to remind everyone that, as a young consumer advocate in utility matters in the early 1980s, he wrote much of a proposed constitutional amendment that the Supreme Court threw off the ballot on the basis that it was both too long to be clearly understood and too short to tell voters everything they deserved to know.

His filing last week says terms aren't adequately defined in Issue 4's ballot title. More specifically, the filing says voters aren't adequately advised in that title, or advised at all in the actual text of the proposed amendment, as to what "non-economic damages" are.

"Non-economic damages" apparently are those for pain and suffering, mental anguish and such things as loss of consortium. But they apparently do not include punitive damages set as a multiplier of economic damages for the really bad actors.

The Bar Association's point is that neither the ballot title nor the actual text says what this column just said, but only with the handy and necessary hedge of "apparently."

The Bar Association's filing also says the voters are not informed clearly in the ballot title about the transfer of power from the judicial to the legislative branch, or that the Legislature could later redefine, presumably open-endedly, "medical injury" and "health care professional."

More generally, the Bar argues that voters aren't adequately informed in the ballot title of the rights they're ceding.

Officials on the nursing-home side say, oh, please, everyone knows what "non-economic damages" are; that the redefinition authority is simply to accommodate unknown medical advancements, and that you needn't write something akin in length to War and Peace to give voters enough to go on.

That legal question is up to the Supreme Court. Depending on that answer, the moral and political question may be up to you.

P.S.--A second suit challenging Issue 4's ballot-qualifying signatures was filed late last week. An effort to hamstring litigation appeared to be encouraging it.

------------v------------

John Brummett, whose column appears regularly in the Arkansas Democrat-Gazette, was inducted into the Arkansas Writers' Hall of Fame in 2014. Email him at [email protected]. Read his @johnbrummett Twitter feed.

Editorial on 09/06/2016

Upcoming Events