by Richard Newman

When people who have had profoundly serious wrongs inflicted on them sue, they are suing for money.  But the fact is that they don’t want money.  What they want, more than anything in the world, is a time machine.  They want to be put back to one minute before their spouse was killed by the drunk driver, one hour before their daughter was paralyzed by a careless surgeon, or one day before they were poisoned by a toxic product.

But we don’t have time machines.  All we have, is money, to try to help broken people put the shattered piece of the lives back together. It is a system that has worked for centuries, based on jury verdicts.

Generally speaking, the money used to compensate someone who has been wrongfully injured falls into two categories:  Economic help, for things like medical bills and lost income or wages; and Non-economic compensation, to make up for what has been lost, or taken, or broken.  Take the case of a little girl paralyzed by her surgeon.  Totally paralyzed from the chest down.  Permanently.

Which loss would be greater – economic or non-economic?  Well, her medical bills, although big, would not be enormous – she is paralyzed after all.  Not much more can be done for her.  And she’s a bright little girl, and can use her arms, so she’ll be able to work – no significant lost future income.  But what about the non-economic losses? Money for things like pain, suffering, that sort of thing?  What does that mean in her case?

Well, it means that the little girl will never play soccer with her playmates; never dance at her high school prom; never walk down the aisle to get married; never give birth to children; never walk down a beach holding hands with her beloved.  And you should see her try to turn over in bed at night.

The non-economic damages in a case like that are huge.  Her life – everything that makes sweet, and wonderful, and fun, has been broken – permanently, for the rest of her life.

Predictably, the House of Representatives has just passed a bill that would limit how much money the little girl, and others like her, could receive for those non-economic losses,  from bad, or careless, or negligent doctors. H.R. 1215, with the Orwellian name “Protecting Access to Care Act of 2017” would limit those amounts that that little girl, or anyone else – everyone else – could get from a bad doctor, to $250,000.  Does that seem fair to you?  That the most seriously injured people are the ones who get limited justice?

And here’s something else – under the Republican Bill, the jury can’t be told about this cap.  In the case of our little girl, a jury, under the supervision of a judge, might return of verdict of 10 million dollars. That is a verdict from an impartial jury, which has heard all the evidence, and reflects the community’s sense of fair compensation for the little girl’s injuries.  The jurors would (mistakenly) think that they have served both the cause of justice, and the parties, fairly.

But only then, after the trial is all over and the jury goes home, would the judge, hands tied by a remote legislative directive, reduce the verdict. Doesn’t it seem particularly cruel to force the family to go through the trial, learn what the jury’s verdict would have been, only to watch the judge reduce it? Does that seem fair to you?  Why do a group of Republican representatives in Washington think that they know more about justice than a local jury which hears all the evidence?  And why the secrecy – Why do the Republican want to hide this from the jury?  And, for that matter, what about the Constitutional right of trial by jury?

Study after study has shown that medical malpractice lawsuits have a very minimal impact on the costs of healthcare, so the stated purpose for this bill – “reducing the excessive burden the liability system places on the health care delivery system,” is false.

Our system of civil justice is based on two pillars:  trial by jury and holding wrongdoers accountable.

Why would the Republicans want to protect bad doctors at the expense of the most severely injured?  Why would they limit just, full, and fair compensation for the profoundly injured?  Is that what you would want for your little girl?

(Richard Newman is the Executive Director of The American Museum of Tort Law in Winsted, Connecticut.)