Michael Bryan Below is an interview with and story of a young survivor of the Haditha massacre. Her entire family was murdered by American soldiers in their home. The following is an interview with Rep. John Murtha regarding the Haditha massacre, intercut with more footage of the young survivor. This story is starting slowly, but it has … Read more
I wrote yesterday
on damage compensation caps, marketed under the trade name Tort Reform™ by the
GOP, and the damage it does to those harmed by medical and other
negligence. But the ideas behind Tort Reform™ also raise serious
and fundamental challenges to the role of the jury in the
administration of justice and protecting American freedoms.
I’m
not alone in this opinion. James Madison said that trial by jury “is as
essential to secure the liberty of the people as any one of the
pre-eminent rights of nature.” Yet the right to have the facts of a
civil dispute, including compensation, decided by a lay jury, is so
offensive to corporate interests that they would have you believe that
our best and brightest are unable to design safe products, deliver
quality medical care, or perform a host of other activities unless we
gut one particular of our Bill of Rights – the Amendment VII, which
reads:
”In suits at common law, where the value in
controversy shall exceed twenty dollars, the right of trial by jury
shall be preserved…”
The right of access to jury to
determine the facts is a basic human right that goes back to the Magna
Carta in our own culture’s immediate history, and back to the Greeks
and the Romans during some of the earliest civilized periods of human
history. For all that time citizenship has included the unimpaired
right to have the facts of your plight, including the necessary
remedies, decided by a sample of your peers. “Juries represent the
layman’s common sense and thus keep the law in accord with the wishes
and feelings of the community,” said USSC Chief Justice Rehnquist (in
one of the few instances that I agree with him wholeheartedly).
This is a rewrite of an earlier editorial length article on
the subject of ‘tort reform.’ In the prior version, I
stayed within the framing of those seeking to limit the liability of
doctors and insurers. By challenging the frame, I think the argument
becomes more powerful. The facts don’t struggle against the opposing frame, they
support the new one. Rhetorical figures become more powerful and invested with
clearer values. This is not however a complete reframing of the issue; it is only a negative frame. It creates an alternative way to view the opposing policy, but it does not create a solution. The packaging of the right way to approach medical malpractice policy awaits another day. That framing excercise is harder because the policy package is not simplistic – rather it is a complex package of reforms which is difficult to summarize. The reason I’m republishing this article, is a Harvard School of Public Health study of malpractice claims was just published that demonstrates very clearly that the problem of unmertiorious claims is vastly overstated, and is not addressed by arbitrary award caps. Also, I was adding some material to Utah Senate candidate Pete Ashdown’s wiki on health care, and was thinking about the issue of ‘tort reform’.
The
medical malpractice (med-mal) insurance industry, some politicians, and
even some misguided doctors, have of late been misleading the public
about the efficacy of caps on med-mal awards, a.k.a. ‘tort reform,’ to
contain healthcare costs. These people have generated a deluge of
coordinated letters to editor and public relations events in Arizona
recently. They are telling the public that med-mal awards are driving
the high inflation rates in the health care sector we’ve seen over the
past several years. But the truth is that their so-called ‘tort reform’
is just a free ride for insurers and incompetent doctors on the backs
of seriously injured patients.
‘Tort Reform’ is really nothing
more than arbitrary compensation caps protecting doctors who harm or
kill their patients and the companies who insure them. Policy makers
actually interested in reforming the torts process would advocate for
ways to remove non-meritorious claims from the system, not for placing
a strict limit on the compensation a jury can award to victims of
malpractice. The cost of caring for a child paralyzed or otherwise
disabled for a lifetime by malpractice can run into the millions, yet
these so-called ‘reformers’ want to cap all awards at a low level,
regardless of the facts of the case. That’s not justice, that’s risk
management, and it’s not what our court system is based upon. Why is a
legislator, who may be getting campaign contributions from the
insurance industry, better qualified to put a price on a lifetime of
pain than a fellow citizen who is disinterested but knows the facts of
the case?
Create your own personalized map of the USA. I seem to be unable to resist these doodads. I usually find these little blog memes to be lamely self-referential, and… well, this one is too. But for some reason I don’t care. I find this an interesting summation of personal experience, a little map of one’s … Read more