by Max Brantley
On November 8, 2016, you will be asked to vote on “An Amendment to Limit Attorney Contingency Fees and Non-Economic Damages in Medical Lawsuits;” which is an amendment to the Arkansas Constitution.One corrective: If the amendment makes the ballot and is approved, the legislature will set the damage limit. It could be higher than $250,000, but no lower. Given that it's modeled after measures in other states — and given the resistance by Republican legislators to damages in, for example, Claims Commission proceedings — most expect that $250,000 will be the maximum. Bottom line: The amendment will effectively end most medical litigation for the young and very old, who have no economic losses to show.
This Amendment will restrict non-economic damages. Non-economic damages, are meant to compensate victims for trauma, disfigurement, and pain and suffering. This amendment would limit damages awarded to the victim to $250,000.00. This means that no matter how horrific the injury, no matter how prolonged the suffering, no matter how preventable the death, the health care provider does not have to pay more than $250,000.00. If the injured person is elderly, frail, and dies because of an injury in the nursing home, $250,000.00 may not adequately compensate for the loss. If the injured person is a young child, poor, disabled, a homemaker—the worth of their claim is also limited to the $250,000.00 cap.
In addition, there is evidence that these types of limits on damages affect women more than men. The injuries that women suffer—loss or limitation of fertility, complications of pregnancy, reproductive harm—can’t be measured in economic terms – are these damages only worth $250,000.00?
An amendment to the Arkansas constitution providing that the practice of contracting for or charging excessive contingency fees in the course of legal representation of any person seeking damages in an action for medical injury against a health-care provider is hereby prohibited; providing that an excessive medical-injury contingency fee is greater than thirty-three and one-third percent (33.3%) of the amount recovered; providing that, for the purposes of calculating the amount recovered, the figure that shall be used is the net sum recovered after deducting any disbursements or costs incurred in connection with prosecution or settlement of the medical-injury claim; providing that this limitation shall apply whether the recovery is by settlement, arbitration, or judgment; providing that this limitation shall apply regardless of the age or mental capacity of the plaintiff; providing that the prohibition of excessive medical-injury fees does not apply to workers' compensation cases; providing that the General Assembly may enact legislation which enforces this prohibition, and that it may also enact legislation that determines the relative values of time payments or periodic payments and governs the consequences and penalties for attorneys who contract for or charge excessive medical-injury contingency fees; providing that the General Assembly shall enact a measure which specifies a maximum dollar amount for a non-economic damage award in any action for medical injury against a health-care provider, but that such a measure may never be smaller than two hundred and fifty thousand dollars ($250,000); providing that the General Assembly may, after such enactment, amend it by a vote of two-thirds of each house, but that no such amendment may reduce the maximum dollar amount for a noneconomic damage award in any action for medical injury against any health-care provider to less than two hundred and fifty thousand dollars ($250,000); providing that the Supreme Court shall adjust this figure for inflation or deflation on a biennial basis; and providing that this amendment does not supersede or amend the right to trial by jury.CORRECTION: I used an earlier, superceded proposed ballot title in my original post.
Both statements are incorrect and misleading in that the right to trial by jury in Arkansas presently includes the right of a jury to set the level of non-economic damages in any action for medical injury without observing a cap to be imposed by operation of the proposed Amendment. The ballot title fails to inform voters that a jury's discretion in awarding non-economic damages will be superseded by a cap.