Why Are Some Politicians Pushing Tort Reform? What You Need to Know

As discussed in my May 4th blog post, “Proposed Tort Reform Threatens Right to a Fair Trial: What You Need to Know,” the attempts to “repeal and replace” the Affordable Care Act include an insidious component—medical liability tort reform. These efforts would impose “caps” on damages awarded by juries, and additional unfair burdens on a victim’s pursuit of justice. While proponents say they believe this effort will be a money saver, study after study have shown no savings in health care costs, and more recent studies even show an increase in costs as doctors and hospitals become less careful in light of decreased accountability.

Medical errors in hospitals are already the third leading cause of death in this country.  Such errors cost the lives of 250,000 to 400,000 Americans each year, as explained in this Journal of Patient Safety article and U.S. News & World Report article. Only cancer and heart disease claim more.  So why do insurers, pharmaceutical companies and the new mega-sized healthcare groups want laws passed that restrict the traditional power of the American jury?

The answer is simple:  Because those groups cannot bend a jury to their will the same way they can control the other branches of government.  Make no mistake—the jury box is the ultimate seat of power in this country. The legislative branch (congress and assemblies) can be controlled through lobbying, electioneering, and campaign contributions to elected officials. The executive branch (president and governors) can be controlled in the same manner, and by relying on networks of inside and “connected” people to fill key government posts.

The jury, however, is beyond such control and influence.  Indeed, most attempts to do so are considered jury tampering, which is a crime.  In many states, jurors remain unidentified, and even when known they cannot be spoken to by any of the parties, lawyers, investigators or assistants involved in the case.  They are purposefully kept beyond influence, in a stark contrast to the elected and appointed officials that must make time for campaign contributors and lobbyists.  Juries are left free to make their own decisions, without the limits and threats of lobbyists and corporate number-crunchers.

Jury duty is in fact a central component of our American democracy, enshrined in the Bill of Rights as the Seventh Amendment.  Alexis de Tocqueville, in his magnificent work “Democracy in America,” noted the unique power of the American jury system more than 180 years ago:

“To regard the jury simply as a judicial institution would be taking a very narrow view of the matter, for great though its influence on the outcome of lawsuits is, its influence on the fate of society itself is much greater still. The jury is therefore above all a political institution, and it is from that point of view that it must always be judged.”

The American jury system is, as Tocqueville noted, a “direct and extreme consequence” of the sovereignty of the people.  It represents direct citizen involvement in the governance of our country, by participation as a litigant as well as a juror.  It is beyond the corrupting influence of power and money, and should not be constrained by arbitrary limits chosen by the powerful.

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