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M. Santa Barbara law

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accidents shouldn't hurt twice

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Amtrak and caps: what does it mean to you?

Posted on May 19, 2015 at 3:50 PM

Yesterday, Monday, May 18, 2015, I was reading the local paper, The Journal, when I came across an article entitled:  Amtrak could pay more than $200 million to crash victims. The article was on page A3 and below the fold. In my opinion it should have been on the first page and in huge bold face. That's how important any news article is that serves to educate us about damage caps.

 

What is a damage cap? A cap on damages is a legislative creation that puts an arbitrary "one-size-fits all" limit on how much an injured person can receive in compensation for their injuries. Caps are generally defined by dollar figures ($250,000.00, $200,000,000.00). Damage caps have been the law in West Virginia since 2003, when the legislature enacted the Medical Professional Liability Act, which caps non-economic damages, things like pain and suffering, disfigurement, disability, inability to enjoy life in the future, etc. to $250,000.00, regardless of what the evidence showed the true nature of the damages to be.  For example, an infant could be horribly mangled in some type of birth incident that was wholly the doctor's fault due to the fact that he was high on skittles at the time of delivery.  Despite the fact that the infant would never be able to work, or have any enjoyment in life, and would forever bear the marks of his injury through horrible disfigurement, and would suffer for the rest of his life due to pain from his injuries, according to the idea of damage caps, he could only recover $250,000.00.  

 

I began this post by citing a newspaper article which declared that Amtrak could end up paying more than $200 million to the crash victims of the May 12, 2015 Amtrak crash that occurred just outside of Philadelphia. When I read the article, however, I really didn't have a good understanding of how Amtrak could be compelled to pay more than $200 million in damages. Sure, the collective damages as shown by the evidence may well eclipse the $200 million dollar mark, but that doesn't matter. What matters is that in 1997, without knowing any of the facts about the May 12 disaster, without knowing any of the 8 lives that were snuffed out by that crash, without knowing any of the injuries that have been suffered, without pausing to calculate even a single dollars worth of damages that will spring from that May 12 disaster, Congress enacted the Amtrak Reform and Accountability Act, which, in part, restricted liability payments for any single train accident to a total of $200 million. You might say, "$200 million, that should cover it!" But does it? In the May 12 crash, more than 200 people were injured, 20 people remain in the hospital, and could be there for a long time, backs were broken, arms were almost severed, and 8 people lost their lives. The May 12 crash will have permanent, life altering consequences for hundreds, perhaps thousands of people.

 

"But", you say, "we have $200 million to cover the losses...that should be enough...I mean how much could one life be worth?" I don't know, but I do know that if it were the life of my children, or my wife, or any other person that I cherish, $200 million would not be enough. My theory of damages is irrational, tinged by love, the fear of loss and loneliness, and emotion. But in a world where GoPro's CEO is being paid $285 million a year, or Chenire Energy is set to pay its' CEO $142 million a year, or where a soccer player is paid $80 million dollars a year to kick a ball around, why should the lives of ordinary people matter so little, or be subject to the whims of arbitrary damage caps?

 

I am opposed to legislatively imposed damage caps. They serve no purpose other than to pander to huge, well funded special interest groups. They do not represent a cost savings to the taxpayer. They hurt those most who are most vulnerable, and they are positively un-American.

 

In the case of the West Virginia Medical Professional Liability Act, the special interest group that was most pleased by the passage of the act was the West Virginia Medical Association. In 2015, the West Virginia legislature enacted another damage cap, by including nursing homes under the protective damage limits of the Medical Professional Liability Act. The $250,000 cap on non-economic damages has certainly delighted corporations like Beverly Enterprises Inc., a multi-billion dollar nursing home conglomerate, and HCR Manor Care, who got hit with a $92 million dollar verdict in 2013 for allowing an 87 year old dementia patient to die of dehydration and starvation due to under staffing.

 

In 2003, West Virginia was in the throes of a manufactured crisis relating to high medical costs, caused by exorbitant costs for medical malpractice insurance, and the lack of doctors to serve the rural areas of West Virginia. Lobbyists for the West Virginia Medical Association said that without caps on liability damages, West Virginia would continue to face skyrocketing medical costs, and doctors would continue to abandon the State for less toxic legal climes. The crisis was manufactured by groups such as the American Insurance Association and Americans for Tort Reform Association. The problem was, and remains that the medical malpractice liability crisis was mostly made up out of whole cloth and for the purpose of scaring voters and legislators into protecting special interest groups.  Other than serving the insurance industry, the West Virginia cap was wholly ineffective.  Simply put, damage caps do not reduce medical malpractice insurance premiums. Testimony taken in 2003 by a Congressional subcommittee disclosed that five states with damage caps: Florida, Michigan, Nevada, Ohio and West Virginia, also had the highest medical malpractice insurance premium costs. Oklahoma, on the other hand, did not have damage caps, and had an actual decrease in medical liability pay outs. Not only did damage caps prove ineffective at reducing insurance premium costs, but they also could not avoid cost increases. In Texas, soon after the legislature enacted a constitutional amendment limiting damages, some insurers requested rate hikes as high as 35% for doctors and 60% for hospitals. The American Insurance Association admitted, sheepishly, that insurers "never promised that tort reform [would] achieve specific savings." In addition to serving a very limited constituency, and being ineffective, damage caps also have a tendency to hurt the littlest, or most vulnerable among us the most. In that damage caps are almost always targeted at non-economic damages, such as pain and suffering, disfigurement, disability, and the inability to enjoy life in the future, they typically act to reduce damages for new born infants, and elderly patients the most. Neither of these groups work, and therefore their damages are not based upon calculable numbers such as lost wages, or future medical care, but rather are based upon non-economic damages, which, in the instances under discussion, are capped and bear no relationship to the actual damages suffered.

 

The thing that bothers me the most about damage caps, however, is that they are un-American. As I have written above, damage caps are a sop to the rich and privileged, and a swipe at our constitutional freedoms.  Pursuant to the 7th Amendment to the Constitution, we, as Americans, have a right to have our cases decided by a jury. The jury is often times called the finder of fact in a trial. Who would you rather have making factual determinations as to what were your damages in a case: the jury who heard the evidence, or a bunch of legislators in a closed room, hundreds of miles away from where you were injured, who don't know your name, let alone your damages? Could a multi-billion dollar corporation, who was being sued for wrongdoing rush out and "buy" the jury that is trying their particular case? Not very likely. But a legislature could be buffaloed, wooed and subjected to blandishments by corporations and lobbyists before, during, and after a legislative session, and could be induced to write bills that favored the corporate wrongdoers, and hurt, in a way that a jury would never do, common people making claims for legitimate injuries.

 

In some states, the constitutionality of damage caps has been successfully challenged. The claims that the legislative grab at judicial power, which is what a damage cap is, violates the separation of powers, the 7th Amendment, substantive due process, and equal protection under the laws have been successfully heard in Alabama, Georgia, Illinois, New Hampshire, Oregon, and Washington.  Many other states are considering challenges to the damage caps.  Unfortunately, Maryland, Virginia and West Virginia have each declared their damage caps to be constitutional. While damage caps are bad for Americans, it is little wonder that they exist. In a poll conducted by the Kaiser Family Foundation, approximately 63% of the people polled favored caps on non-economic damages. Nearly 70% of the people questioned said that they believed that limiting damages for pain and suffering would help "a lot" or "some"  These poll numbers reflect the powerful influence of the messages being spread by slick advertising, and paid for by shell groups such as Citizens Against Lawsuit Abuse, or American Tort Reform Association, or the American Insurance Association. (These messages can be summarized thusly:  lawyers, lawsuits bad, corporations good for America, good for economy.)

 

Perhaps that nearly 70% would like to explain to the last Amtrak victim why there is no more money to pay for his injuries. We, as Americans, must stop accepting, without question, the lies that corporations, and their bagmen (see above, CALA, ATRA, AIA) are feeding us, we must stop giving away our constitutionally guaranteed rights in the name of a more efficient economy, we must stop acting against our own interests. This is particularly so in West Virginia, where it seems that since the days of the company store, the common man has lost out to the corporation. I want jury verdicts to be fair and based upon an examination of the evidence. I don't want them to be manipulated and whittled away by powerful corporate lobbyists, and paid for legislators who don't know your name, and don't care about your pain. Rant over...for now.

Categories: The law

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