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S.C. Statehouse Report
Jan. 18, 2004
VIEW: http://www.statehousereport.com/columns04.0118.tortreform.htm
BEST
OF 2003: If you'd like to see a great cartoon retrospective
from our Bill McLemore, click here.
 COMMENTARY
Tort reform bills are
rush to judgment
By
Andy Brack
SC Statehouse Report
JAN. 18, 2004 - - Even the lobbyists in Columbia were surprised.
First, a House Judiciary subcommittee Tuesday passed two comprehensive
legal reform bills with little debate. Then on the same day, the
full committee approved the measures, again with little in-depth
debate. The House is expected to spend Wednesday considering the
measures.
 If
approved by the full General Assembly, they would dramatically shift
people's abilities in South Carolina to recover damages in civil
court for wrongs, such as negligence, medical malpractice and bodily
injury. For the first time, they generally would cap the damages
people could receive for negligence and other wrongs at $2 million,
although juries could make higher awards to punish folks who have
done really bad things.
Unexpectedly quick movement on the bills during opening week of
the General Assembly came after the word apparently went out from
the House GOP leadership: "Move ahead with lightning speed
on tort reform so we don't have to deal with it and get bogged down
with it this year. Send it to the Senate so it can be blamed if
the General Assembly doesn't pass tort reform this year."
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TORT
REFORM SUMMARY
Here
are the major components of tort reform as proposed by the
House Judiciary Committee (H. 3744, H. 4464):
- Caps
"non-economic" damages at $2 million
- Caps
punitive damages at 9 times amount of compensatory damages
- Caps
"pain and suffering" damages in medical malpractice
at $300,000
- Calls
for plaintiffs to share proportionate amount of damages
- Provides
a "right to cure" defects for contractors
- Ends
"venue shopping" by lawyers
- Provides
sanctions for frivolous lawsuits
For a
more in-depth summary provided by the House Judiciary Committee,
click
here (11K PDF).
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But that strategy doesn't sit well with Senate leader Glenn McConnell,
the Charleston Republican who also chairs the Judiciary Committee.
For months, his staff has been doing research on tort reform ideas.
"We are not going to let the House wholesale dump the question
of tort reform on us and make it appear to the people of South Carolina
that we're holding it up and won't deal with it," he said.
House Judiciary Chairman Jim Harrison, R-Columbia, said committee
members met a half dozen times over the summer and fall in public
hearings to discuss components of tort reform. At the meetings,
there was ample input from doctors, industry and lawyers, he said.
"We worked on this bill over five months of public hearings
and a great deal of testimony," Harrison said. "That's
not slamming a bill through."
He said the rush to get the bill to the Senate would give it ample
time to consider it and likely allow some action on tort reform
to occur this year. If the House waited too long, the Senate would
complain the House didn't give it enough time, he added.
"The way it works is we pass it and send it to them."
But former House Democratic Leader Doug Jennings of Bennettsville
complained the process has been rushed to benefit businesses and
doctors, who face increasing medical malpractice insurance costs
(even though South Carolina has some of the lowest rates in the
nation.)
"This has been an industry-driven effort by the insurance
industry and the [state] Chamber of Commerce," said Jennings,
a lawyer. "There's been little input from victims of other
people's negligence."
What worries Jennings and many trial lawyers is they believe so-called
tort reform isn't needed because South Carolina's system that protects
the rights of victims generally works well.
For example, juries don't award billion-dollar verdicts in South
Carolina. A 2003 review of verdicts by South Carolina Lawyer's Weekly
showed only nine verdicts exceeded $1 million - - and only three
were higher than $10 million:
- A $30.25 million award in Berkeley County to a doctor who sued
a medical facility for defamation after a worker accused him of
stealing equipment. Lawyers for the doctor expected the award
to be cut significantly.
- A $17.25 million verdict to a Seneca woman whose doctor whose
doctor messed up her stomach operation - - and the corrective
surgery to fix the mistake.
- A $10.6 million verdict to a Dorchester County patient "whose
bile duct was severed by a surgeon who himself was scheduled to
undergo open-heart surgery just days later."
Runaway lawsuit verdicts aren't a problem in South Carolina, Jennings
said, because state law allows judges to sit as the 13th juror.
If a judge believes a jury has been unreasonable in awarding a verdict,
he has the discretion to cut the verdict to make it fairer, as suggested
in the Berkeley County case above.
More than anything, the rush to fix a tort system that may not
be broken will take away the rights of juries to make decisions
on a case-by-case basis, he said.
"When you try to take a cookie-cutter approach, you take out
of the jury's hands the ability to evaluate each case based upon
its specific facts."
When victims are hurt by negligent actions, juries should make
decisions, not state lawmakers. Otherwise, lawmakers are taking
away people's freedoms in favor of big business. Aren't Republicans
supposed to be all about protecting freedoms, not trampling on them?
McLEMORE'S WORLD
First words
This week's cartoon by our Bill McLemore:
FEEDBACK
1/12: Libertarian
wants to lower taxes
To the editor:
Our Revolutionaries revolted over a 3 percent tea tax. Now, government
takes nearly half of our annual income!
The U.S. Government gave $1.6 billion to McDonald's, through the
U.S. Dept. of Agriculture's Market Access Program, so it could advertise
Big Macs in EUROPE! Won't you sleep more soundly tonight knowing
that you paid for European McDonald's advertising, while your government
continues to say that it needs even more money out of your paycheck
to help balance the budget?
Campbell's Soup has received $300,000 in taxpayer money. IBM has
received $1.4 BILLION. Ernest & Julio Gallo winery received
$4.9 million. $671 million went to General Electric. $3 million
went to the California Raisin Board.
Heck, the state government won't even allow me to make personal
choices on where I will spend my own money (video poker), but they
can take half of it, every year, and give it to big corporations--or
use it to give CIA training, weapons and other aid to people like
Osama bin Laden! Something's just not right about that.
I support the Libertarian philosophy of eliminating waste, redundant/
overlapping agencies, unnecessary bureaucracies and special-interest
projects. People would have more money to save, invest and spend.
With the increased demand for products and services, the job market
would have to expand to keep up with it. Then, with increased numbers
of jobs, there would be more people saving, spending and investing.
The circle of prosperity continues.
That's the kind of America I want to live in.
-- Doug Kendall, Columbia
1/12: Leave Internet
taxation alone
To the editor:
As the state has clearly not become dependent on it [Internet
sales taxes, 1/11 column] now, the legislature could always
examine the idea of leaving it in the hands of the people who earned
it.
-- Stuart C. King, Florence, SC
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