We all know the people. Charismatic, energetic, theatrical, compelling—they keep us listening to their riveting stories for hours as we sit in awe of their tales of conquest and of bravery, their funny stories, just how big their fish was.
Yet when it comes to our justice system, does this type of person deserve more justice than the rest of us? Does their attention to detail and ability to capture our emotions entitle them to greater awards than someone with the same story but less dramatic flair? Everyone is entitled to equal justice before the law-- a compelling story should not take precedent.
Right now the legislature is considering House Bill 1784, proposing an undefined cap on non-economic damages, which measure intangible harms with no objective quantification. This could prevent excessive awards which drive medical costs higher and help alleviate the shortage of doctors, especially specialists, in Hawaii. Why? Because as it stands these awards are completely arbitrary, based on emotion rather than any quantifiable or objective gauge. Such uncertainty discourages doctors from practicing, as they cannot know what to expect from the justice system.
Let me give you an example. In New York City recently, a young college man consumed enough beverages to put his blood alcohol level at two times the legal limit for driving. The law-abiding student did not drive, but somehow ended up on the subway tracks and was run over by a subway train, resulting in the tragic loss of his leg below the knee. He was awarded $2,300,000 for pain and suffering, which are non-economic damages. No one made him drink, he doesn’t even know he got onto the tracks, yet the Metro Transit Authority was held responsible for his foolish actions. A bit of tort reform could have prevented this outrageous ruling.
Tort reform is a sensitive issue because it must take into account both the plaintiff (the patient) and the defendant (the physician) when awarding justice. A tort does not address a poor medical outcome, but a poor medical outcome that has resulted from the negligent conduct of a physician. The law must ensure the plaintiff has adequate access and incentive to suit, is sufficiently compensated for harms incurred, and provide sufficient incentives for physicians to take due care in their practice. The defendant deserves to be protected from frivolous and undeserving lawsuits and excessive awards, both of which drive premiums higher and discourage physicians to practice.
Tort reform encourages physicians to continue to practice medicine by reducing their premiums which, coupled with the low insurance reimbursements rates in Hawaii, can make practicing medicine here economically difficult. In states that have enacted a cap, premiums are significantly lower than in states that have not placed a cap on non-economic damages.
For example, an average Emergency Room physician in Colorado, which has one of the best medical liability climates, pays $26,838 a year in premiums. In Arizona, which has one of the worst medical liabilities climates, those same physicians would pay $73,273 a year in premiums-- almost three times the amount.
Placing a cap on non-economic damages still gives plaintiffs incentive to sue while at the same time reducing the incentive to sue based solely on perceived personal enrichment. Legitimate claims are fully compensated for actual monetary losses incurred, which are defined as economic damages, while profit-mongering plaintiffs will be capped at a certain limit for their non-economic damages. Economic damages include any and all medical fees associated with the harm incurred, as well as income loss, and even disability payments—every bill associated with the tort is paid without limitations. The only things not covered are pain, anger, frustration, and other emotions which cannot be objectively valued.
Placing a cap at or below $500,000 on non-economic damages would limit the astonishing sums sometimes awarded, more akin to winning the lottery than adhering to any standard of justice. Hawaii would benefit by reduced physician premiums, which would encourage physicians to continue to practice. Patients in turn would benefit from the increased supply of physicians. Now that is a win-win situation.
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