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.

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."


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).

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.



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"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?

First words

This week's cartoon by our Bill McLemore:


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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