Opinion » Viewpoint

The Real Tort

A local GOP leader criticizes his party's malpractice stance.

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I am a Republican. I am a trial lawyer. These are not mutually exclusive concepts. Classic conservative Republicans should be strong supporters of our system of justice most specifically, the jury system.

Today, our right to a jury trial is threatened as never before. Insurance companies and powerful corporate interests spend millions every year to undermine the public's confidence in the jury system. The targets du jour are medical malpractice claims. These are cases brought by patients who believe they have been injured by mistakes committed by their doctors, hospitals, or other health-care professionals. Medical malpractice reform advocates want to deter "frivolous lawsuits" by putting caps on jury awards. They argue, without much statistical support, that measures which eliminate the so-called runaway verdicts will lessen medical malpractice insurance premiums.

Experience tells us that, in jurisdictions that have enacted such reforms, premiums do not fall; often they continue to rise. If the problem is insurance premiums, then perhaps legislatures should investigate premium reform instead.

Nothing has done more to prevent malpractice, encourage product safety, and ensure fair treatment in the workplace than the fear of lawsuits. If you put a cap on jury awards, will that make doctors more or less careful? Will companies be more or less inclined to safety-test new products? This deterrence-and-prevention function is as important as that of compensating victims.

In my experience, juries more often react to the arrogance, malice, or greed of the defendant than to any understandable sympathy they might have for someone wrongfully injured. The fact that runaway jury awards are so few and far between demonstrates that they are an aberration. Most juries get it right.

Critics cite the famous "McDonald's coffee" case as an example of the jury system run amok. In that case, the fast-food chain decided it needed a larger profit margin on its coffee and decided to use a cheaper brand. The company further decided to super-heat the coffee so as to disguise its inferior taste. Unfortunately, the super-heated coffee created the risk and the reality of third-degree burns.

McDonald's actuaries estimated the number of injuries the super-heated coffee would cause against the expected cost of claims and the remaining profit. Bottom line: The profit margin would still be higher. Decision: Serve coffee known to be dangerous, risk serious injury to customers, and make more money anyhow. A jury found this conduct unacceptable and awarded a mega-judgment of millions to punish the conduct. The corporate giant was forced to change its policy. "Capped" awards would have had no effect.

Large jury awards are a signal that there is a problem but not with the justice system. Large jury awards are a statement by the community that certain conduct is unacceptable. As former Senator Fred Thompson declared: "The only medical malpractice insurance crisis is medical malpractice."

As a Republican, I believe in laissez-faire government, strong state governments, a decentralized federal government, personal responsibility, and freedom. As a trial lawyer, I believe the jury system is the backstop to help guarantee and protect freedom.

History has given us a gift. The politicians should keep their hands off for short-term political gains. Any excesses will be worked out of the system as they have been for hundreds of years through judicial action and clarification. I wonder what the greatest Republican trial lawyer of them all, Abraham Lincoln, would think of his party's current efforts at "tort reform"? n

Alan Crone is an attorney and the immediate past chairman of the Shelby County Republican Party.

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