Tort Reform Hypocrite
Rick Santorum

Now that Rick Santorum is a legitimate contender for the Republican Party nomination, the rest of the country is learning things about this politician that those of us in Pennsylvania have know for a while now.  (In 2006, Pennsylvanians tossed him out of the U.S. Senate; the margin of defeat was the largest for any Republican incumbent in Pennsylvania history.)

Rick Santorum was a man of many controversies during his time in the Senate.   During his improbable presidential run, he has continued to find ways to attract lightning.

Although his views against contraception have received a lot of attention in the last few weeks, Santorum’s position on tort reform reveals hypocrisy on number of levels.  If his candidacy continues and the health-care debate retakes center stage, his tort reform views will become even more important to understand.

When he was in Congress and now out on the stump, Santorum has pushed for caps on damages.  Tort reform has been a staple of the GOP’s pro-business, pro-insurance company agenda for many years now, but Santorum has been an especially zealous advocate for the view that there should be a fixed ceiling on the amount a personal injury plaintiff can recover in damages.

Specifically, during his congressional tenure, Santorum introduced a bill to cap damages at $250,000.  This cap would apply regardless of the extent of injuries, the medical needs in the future, the value of lost wages, or any other factor that a jury typically would consider in determining the amount that would “fairly and adequately compensate” a victim, to borrow the words that most judges use to explain the purpose of damages to juries in civil cases.

There are many reasons why capping civil damages would be devastating to the rights of those who have been injured.  There are at least three reasons that get at the heart of what is wrong with Rick Santorum’s special enthusiasm for limiting individual rights.

That’s the first one, right there.  An individual has the right to redress in our courts for injuries caused by someone else.  Santorum claims to be for limited government in favor of individual liberty.  Here, however, Santorum wants to limit individual rights and to do so in a way that hurts those who are already the most seriously injured.

After all, a cap on damages has nothing to do with curbing frivolous lawsuits.  A jury only reaches the damages question at trial after having already determined that the plaintiff’s case has merit, that someone else is legally responsible for the injuries at issue.  By definition, then, a cap on damages infringes on the rights of someone whose case is meritorious.  And because a cap on damages is not relevant to a relatively minor claim, this kind of “reform” only affects someone whose injuries are substantial, i.e. someone who has suffered the most serious damages and losses.

The impact of this proposal clearly works against the idea of individual freedom.  No Republican proposes to limit the amount of money a corporation may recover in a civil lawsuit.  A cap on damages only applicable to individuals with personal injury claims makes no sense.

Santorum’s affection for the caps on damages proposal also suffers from an even more glaring and more personal form of self-contradiction.  In 1999, Santorum’s wife, Karen, filed a personal injury suit against her Virginia chiropractor.  In that lawsuit, Mrs. Santorum sought $500,000 in damages for a back injury she claimed she had suffered during chiropractic manipulation.   That was a hefty sum considering she had only incurred about $18,000 in medical care costs.

That’s right:  The Santorums requested $500,000 in damages.  But for everyone else, Santorum has argued, there should be a damages limit of half that amount.

Every state court judge has the power to limit the amount of a jury’s award so there is no need for a federal cap on damages of the sort Santorum has long urged.  (There is no need for a state law capping damages either, even though some states, like Texas (think George W. Bush), already have damages cap laws on the books.)

The Santorums know very well about the power of a state court judge to limit damages – a procedure called remittur – based on their own experience.  In Karen Santorum’s personal injury case, the jury awarded her $350,000 in damages.  After the trial, the judge determined that the amount of damages was excessive, given Mrs. Santorum’s fairly minor injuries, and so he reduced the jury’s award to $175,000.

When the case was over, Santorum refused to discuss the obvious contradiction between his personal and his public positions on tort reform, telling the Pittsburgh Post Gazette that his wife’s lawsuit was “a personal family matter.”

The Santorum story reveals another problem for the Republican advocates of damages caps.  The big loser when it comes to a damages cap is the person already injured.  In effect, the costs of a catastrophic injury, where there is negligence, are passed from the wrongdoer to the injured person.

In medicine, doctors and hospitals carry malpractice insurance.  These sophisticated insurance companies know how to manage their risk, pegging premiums to higher-risk physicians and creating incentives for physicians who take steps to reduce risk.  Under a damages cap system, which creates an arbitrary ceiling on what an individual or family can recover regardless of the actual losses, the effect is a windfall for the insurance company.

Moreover, the ultimate financial burden falls to the taxpayer.  In Susan Saladoff’s documentary, “Hot Coffee,” one segment profiles a family from Nebraska who experienced this problem first-hand.  (For more info on the documentary, go to www.hotcoffeethemovie.com.)

Nebraska is one of a number of states whose legislature took up the call of tort reform and passed a law setting a cap on damages.  In the film, Saladoff tells the story of one young couple who had twin sons, one of whom sustained brain injury from lack of oxygen due to a delay in the delivery.  The couple filed a medical malpractice action and won a $6 million verdict at trial.

The Court then reduced the jury’s award, consistent with Nebraska’s cap on damages.  The reduced amount was far less than necessary to provide for the significant medical care the couple’s son required because of his brain injury.  The family could not pay for the medical care their son needed.  So they turned to public assistance, Medicaid.

Needless to say, Medicaid does not exist without public funding.  So, here again, an individual was injured, a jury found that it was the fault of the doctor who had cared for the child, and a state law imposed a limit on the amount the family was able to recover for their losses, for their son’s terrible injuries.  The insurance company that could have paid the jury’s award surely was pleased.  The rest of us should be outraged.

Santorum has argued for cuts to Medicare and Medicaid, but his fondness for caps on damages would only increase the burden on those already overwhelmed federal programs.  Apparently, Rick Santorum would accept a set of rules (rules from which he is exempted) that would allow insurance companies only to pay small claims and to shift the financial burden of the most serious injuries onto those who have been injured – and ultimately onto the rest of us who pay to finance Medicare and Medicaid.

That makes perfect sense to Rick Santorum.  Did I mention that Pennsylvanians threw Santorum out of the Senate?

 

 

  • Roy

    this is great Aaron – your blog is a must read!