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The Folly of Damage Caps: More Evidence

Public Citizen, a group devoted to studying these sorts of things, provides more evidence of the folly  of damage caps.  If the movie Hot Coffee did not close the deal, a recent analysis of Texas’ medical malpractice reform should.  Click here to read more.  “Tort Reform” was probably the most cynical American political construct since McCarthyism. Seeking to hurt the trial lawyer financial base of the Democratic Party, political strategists (i.e., Karl Rove) crafted mythical arguments in their anti-civil justice system crusade.  Where it used to be that individual Americans, regardless of their station in life, could hold the wealthiest and most powerful interests accountable for negligence and wrongdoing, Karl Rove and his political followers went to war on the system.  Knowing that attorneys who handle these cases on contingency fee are frequent contributors to Democrats, Rove crafted a strategy that would hoodwink the American people, play on their prejudices, and hurt the trial bar financially.  The strategy was to cap damages in civil cases.  By legislatively and arbitrarily capping damages at $250,000, Rove would limit the amount of money trial attorneys could recover on contingency fees.  This would wipe out the trial bar, limit their ability to handle cases for people who could only afford contingency fees, and strip the Democrats of resources. It would make the powerful interest omnipotent, no longer accountable to the American people.  The strategy relied on pubic antipathy toward lawyers, demonization of lawyers, and rabid anti-lawyer bias.  It ignored the consequences, and it ignored the value and credibility of the American citizen jury.

The strategy worked.  Many states, including Texas, passed tort reform, capping damages in civil cases.  This effectively slammed the courthouse doors on millions of catastrophically injured Americans, and extracted financial pain on the trial bar.  It was cynical and misleading as it based its rationale on the policy argument that damage caps would improve medicine, cuts costs, and improve business.  The data is in.  Texas, where medical malpractice damages were capped at $250,00, and where medical malpractice victims today have little to no recourse, has seen health care costs rise and has failed to attract significant numbers of new physicians.  Tort reform has stripped Texans of their rights to hold the health care industry accountable for negligence, made health care less safe, and has not improved costs or access.  The Republicans got their way, but Texans are the big losers.  This is great proof that the American political system, where the policy debate currently goes to the highest bidder, is broken.  When will we learn?