We need insurance reform, not tort reform.

Insurance companies are raking in record profits. Looks like we need insurance reform and not tort reform. More reasons to tell your state senator to #VoteNoSJR8! More facts below:

  • Over the last five years (2011 – 2015), Arkansas medical malpractice insurers took in more than twice as much as they paid out. We need insurance reform, not tort reform.
  • Over the last 10 years the number of insurers writing medical malpractice has steadily increase to a now record 83
  • “The medical liability environment has been better than expected by anyone.” – Howard Friedman, President of ProAssurance, the fifth biggest med mal insurer in Arkansas.
  • “This is a boom time for physicians, and the industry is making money.” – Michael Matray, editor of Medical Liability Monitor.
  • Arkansas Medical Malpractice insurance rates are the 10th lowest in the nation.
    • Doctors in the state pay an average of 39% less than doctors nationally.
  • Arkansas has the lowest health care premiums in the country.

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Did Prop 12 (Tort Reform) Lower Health Care Costs in Texas? NO!

UPDATED –  Tell your state representative to vote no on SJR8! Call 501-682-6211. SJR8 is a proposed constitutional amendment that will put a price tag on your life and strip accountability from abusive and negligent nursing homes, broken hospital systems, and corporations. Some people want to hold Texas up as the poster child for tort reform…but for all of the promises of tort reform, none really panned out. Facts Matter. See below:

  1. Tort reform did not lower health care costs. Texas health care costs are the second highest in the nation and have risen faster than the country as a whole since caps were enacted.
  2. Texas has the highest rate of uninsured residents in the country, and the numbers have only increased since caps were enacted.
  3. Texas never experienced an “exodus of doctors.” The number of doctors in the state increased 14% both before and after caps were enacted. When population growth is taken into account, Texas aded doctors at a faster rate before caps.
  4. Texas never experienced an “exodus of insurance companies.” The number of insurers in the state has been steady for decades.
  5. Malpractice rates have fallen 11% nationwide, but only 8 percent in Texas. And reductions in Texas lag far behind the decreases in payments insurance companies make. Insurance companies have kept 438 percent more money than they have paid out.
  6. Texas never experienced a “litigation explosion.” Before caps the number of medical malpractice claims had been steady for many years. When adjusted for physician growth, paid claims declined in the 10 years before caps.
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Arkansas Physician Premiums consistently lower than states with damage caps

Please call your state senator TODAY to voice your opposition to SJR8, the proposed constitutional amendment that will put a price tag on your life and will shield negligent and abusive nursing homes from accountability. You and your loved ones will be in danger. Proponents of SJR8 say it will lower our physician premiums but tort reform hasn’t accomplished that in other states. Here are some facts to keep in mind about physician premiums in Arkansas. Arkansas’ premium rates are low.

  • Malpractice premiums averaged across specialties are nearly 52% higher in states with caps than in Arkansas.
  • Malpractice premiums for internal medicine are 51% higher in states with caps than in Arkansas
  • Malpractice premiums for general surgeons are nearly 79% higher in states with caps than in Arkansas
  • Malpractice premiums for OB/GYNs are 36% higher in states with caps than in Arkansas
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The Life of an Arkansas Purple Heart Veteran from “Band of Brothers” worth less than $250,000

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How much is the life of the retired war hero portrayed in the HBO mini-series, Band of Brothers, worth to an abusive corporate nursing home? Arkansas legislators want to pass SJR8, a proposed constitutional amendment which limits the value of life and says the lives of nursing home residents are worth less than $250,000 simply because they don’t have “economic value,” i.e., aren’t in the work force. The heroic life and tragic death of Staff Sergeant Denver “Bull” Randleman, who was awarded a Purple Heart and a Bronze Star, reveals the shocking consequences of this harmful proposal. A war hero who endured punishing conditions to fight the Nazis, Randleman’s heroism was portrayed in the award-winning HBO miniseries, Band of Brothers. Tragically, Randleman died an excruciating death due to negligence in an abusive Texarkana nursing home. Under SJR8, the value of his life and penalty for his horrific suffering due to nursing home neglect would be less than $250,000, only because he was 82 and retired. To a corporate nursing home raking in millions of dollars in revenue, this is merely to a slap on the wrist for deadly neglect.

Randleman, an 82-year-old retiree, had surgery to place an AV graft in his arm in anticipation of his eventual need for dialysis. He was discharged to a Texarkana nursing home for a 30-day period of rest and rehabilitation. It was his only option as his wife was also elderly. It was meant to be a brief stop on his way back home after the surgery. But Denver Randleman never went home again. Mr. Randleman entered the nursing home on May 12, 2003. It was the job of the nursing home staff to look after his surgical wound and ensure that it was healing and free of infection. According to the nursing home’s documentation of the wound, the wound site was normal and healing.

In documentation day after day, there was never any mention of redness or drainage or rupture of the wound. But on June 16, Mr. Randleman went to see his doctor for a previously scheduled post-surgical evaluation. To the doctor’s shock and surprise, Mr. Randleman came in to his office pale, incoherent and breathing rapidly. The wound that according to the nursing home was just fine, was actually red, ruptured, swollen and extremely tender. The nursing home staff did not have a clue because they did not have the time to observe and evaluate the wound. Randleman’s wound was infected and contained an abscess, which is a large pocket of pus. Shockingly, Randleman’s shunt was visible through the opening in the wound.

Denver Randleman suffered a severe deterioration while in the nursing home. Instead of a properly healing wound that would have been achieved by standard, simple nursing care, Mr. Randleman had a preventable severe MRSA infection in the surgical graft that had become septic. This means the wound festered for so long, the bacteria had spread into his bloodstream and become a deadly infection. The nursing home could have easily detected the signs of infection early, and with proper intervention Mr. Randleman could have been treated for a mild infection. However, the facility was chronically short of staff, and the staff never had the time to watch for early signs of infection in a post-surgical wound. Only months prior to going into this nursing home, Denver Randleman, though 82 years old, had been traveling around the world to the premieres of Band of Brothers, visiting with our service members along the way.  Less than a year later he was dead due to a preventable infection.

In the Battle of the Bulge, Randleman and his brothers in arms were freezing in the European woods. His legs were so frostbitten that his hair follicles died and for the rest of his life, no hair grew on his legs from the calves down. Michael Cudlitz, the star of The Walking Dead, played Denver Randleman in Band of Brothers. They became close and formed a strong bond. When Cudlitz asked Randleman about the pain of his lower legs freezing, Randleman just said he did not remember it. Cudlitz persisted and Randleman said this, “Well, I remember sitting in a hole, freezing, watching men around me die…..”  In his deposition testimony, Cudlitz was asked whether the value of Bull Randleman’s life was less because he was elderly.  Cudlitz said, “…so far as dealing with everything that’s happened in his family since his death, which is the loss of his daughter, which his wife had to go through by herself, his son being diagnosed with lymph cancer, which his wife has to go through by herself, and the fact that he would still be traveling around, possibly, meeting troops and sharing his story with the world, I think…his life is more valuable.”

SJR8 says Randleman’s life is worth less than $250,000. The nursing home’s neglect deprived our brave troops now fighting Al Qaeda and ISIS from the stories and wisdom of this brave veteran who helped take down the mighty German Army. Countless valuable Arkansans don’t work including babies, children, stay at home moms, the elderly, and the disabled. But here in Arkansas, we believe that every life is priceless and that one life is not more valuable than another. Any corporate nursing home should operate as though every life in their beds is priceless, and if they don’t, they should be held accountable. Help us protect the vulnerable and injured in Arkansas and tell your state senators to vote no on SJR8.  For your senator’s contact information, click here.

 

I am a Conservative, therefore I am against tort reform

Blood of America's heroes

I am a Conservative
Therefore, I oppose tort reform!
Thoughts from a Debate Revisited
By Brian Brooks

            In July of 2014, the Little Rock Chapter of the Federalist Society contacted ATLA and asked someone from ATLA to debate “tort reform” with someone from The Manhattan Institute. Another typical debate over “tort reform” was a tiresome thought, so it was proposed, and eventually decided, that the debate would take an unconventional term. The debaters would discuss the merits and demerits of tort reform from the standpoint of conservative thought. Stated another way, the theme of the debate was whether “tort reform,” as it is typically understood, is consistent with or antithetical to conservative principles and values.

            The debate was held at the State Capitol. Mr. James Copland ably represented The Manhattan Institute. I was honored to be chosen to represent ATLA. My remarks were reduced to an article published in the Docket’s 2015 Winter edition, which I will refer to as the debate article.

             With another legislative session approaching during which ideas of “tort reform” surely will come to the surface, it seems appropriate to revisit the thoughts expressed in the debate article. The text that follows uses the ideas expressed there as its core and expands on those thoughts. The conclusion is the same: because I am a conservative, I must oppose tort reform. “Tort Reform,” in fact, runs against traditional conservative values. Said another way, a true conservative would stand firmly against “tort reform” initiatives at the state and federal level.

Conservatism—What it is.

The words “conservative” and “conservatism” are bandied about somewhat carelessly in political conversation, but little time is spent understanding what they mean. Conservatism is a way of life and living, a set of values and convictions. It is not a political brand or expediency. It is taught, it is lived, and it is learned.

In his preface to his Ten Conservative Principles[i] delivered in a lecture to the Heritage Society in 1986, a work I find interesting and will return to from time to time, Russell Kirk explained, “there is no Model Conservative, and conservatism is the negation of ideology: it is a state of mind, a type of character, a way of looking at the civil social order. The attitude we call conservatism is a sustained body of sentiments, rather than a system of ideological dogmata.” Mr. Kirk went on to set forth that “A people’s historic continuity of experience, says the conservative, offers a guide to policy far better than the abstract designs of coffee-house philosophers.”

For this reason, I told you in the debate article that the foundation for who I am as a conservative was laid in my upbringing and in Sunday School class then continued in my formative adult years. How to treat others and the consequences for it was ingrained in me through my family and those influential in my life. Principles are taught to be lived. And I had great teachers.

This is the foundation for the point made here. The principles that inform “conservatism” are not political expediency or popular thought. They are a way of thinking and living. They define what is important and effective, not what is convenient or superficially appealing.

My Mission—What I do and do not do.

As was the case in the debate article, I wish to achieve a clear understanding of what it is I do, and what I do not do, here. I am not going to engage in the exercise of citing, quoting and trading studies and statistics about the effect, or lack of effect, on “you-name-the-variable” that results from tort reform. I leave that approach to other authors. Rather, the question I ask and answer is this: is the change in the law wise and correct and does it advance meaningful societal values? It is not whether one of its many effects is statistically good or bad. The tort reform question for the conservative, therefore, is whether a law that, for example, limits the damages parents of children killed in a bus wreck to some predetermined amount, is wise or correct policy choice for our society.

So, what I am going to do is back up my idea that tort reform is antithetical to conservative principles by doing these things. I will,

  • Reiterate the six basic conservative principles from the debate article that I doubt anyone espousing to be a “conservative” will question;
  • Again explain why our constitutional right to allow juries to decide civil cases is consistent with those principles;
  • Reiterate what “tort reform” is;
  • Explain why “tort reform” is inconsistent with those basic principles.

My Message
Six Basic Conservative Principles
So what are these basic conservative principles?
The first of these principles is that all life is precious, valuable, and deserves to be protected and treated with dignity. This value is at our conservative core and it is fundamental. When I say “all life” I mean “all life.” Conservatism does not countenance a valuation of one life over another. We do not tolerate or accept any notion of an elite class standing over all others that is worth more. “All life” must be treated with respect and dignity and protected whether that life be black or white, male or female, stay-at-home parent or corporate executive, Governor or garbage collector, in the cradle or in the nursing home, born or unborn.

This first principle is most often associated with the abortion debate, but it is much broader. Dignifying and respecting life certainly begins in the womb, but it does not end there. This principle means the conservative advocates law and policy that protects life at all stages, and abhors law and policy that either devalues life or endangers life and safety whether the life is fetal, adolescent, teenaged, adult or elderly.

The second principle is that the right to private property cannot be arbitrarily and unfairly interfered with. The right to hold private property is essential to individual freedom. Locke wrote that we hold as fundamental “life, liberty and property.” This phrase was the precursor to Jefferson’s “life, liberty and the pursuit of happiness” contained within the Declaration of Independence. The right to hold property without the arbitrary interference of government is fundamental to who we are. Why is this so? Returning to Mr. Kirk’s lecture, he set forth the principle that “freedom and property are closely linked. Separate property from private possession, and Leviathan becomes master of all. … The more widespread is the possession of private property, the more stable and productive is a commonwealth.” Private property is essential to freedom.

The third principle holds that actors must be held accountable and responsible for their actions. Accountability is the key to promoting responsible human behavior and to protecting life, property and freedom. We hold people accountable for their actions in order to motivate them to act responsibly, so that the things we hold so valuable are protected. Absent accountability, we promote and condone irresponsible behavior. My father taught me this lesson when I threw a baseball through the back window while bouncing it off of the house as I was told not to do. I mowed yards to replace it. A corollary to this idea is that responsible actors are rewarded. Those who follow the rules, act safely, build better products, work harder, and do more are rewarded. At the same time, those who do not must compensate for the harm they cause.

The Conservative values law and policy that promotes responsibility and accountability. Law and policy that promote rewarding responsible actors are sought. Law and policy that limit personal, individual accountability and promote irresponsible behavior are opposed.

A fourth conservative principle says that rational economic actors act rationally and are motivated to act responsibly when held accountable. When we reward good behavior we get more of it. When we penalize bad behavior we get less of it. And vice versa. We all know that money is a motivator and that incentives impact behavior. Money, or its equivalent at the time, has long been used as a motivational tool. The Bible sets forth all manner of financial consequences for wrongful acts that are to be imposed on the wrongdoer. When behavior, good or bad, has consequences, behavior is motivated.

The fifth conservative principle opposes big government, and promotes local decision making closest to the people. The more local and close to the people government is, the more efficient, fair, and rational it is. Small government staying out of our lives spurs freedom and innovation. Large government is an inefficient deterrent. Thomas Jefferson noted, “The government closest to the people serves the people the best.” Mr. Kirk addressed this point in his principle that “conservatives uphold voluntary community, quite as they oppose involuntary collectivism.” He noted, “In a genuine community, the decisions most directly affecting the lives of citizens are made locally and voluntarily. … But, when these functions pass by default or usurpation to centralized authority, then community is in serious danger [and] … real government by the consent of the governed gives way to a standardizing process hostile to freedom and human dignity.”

The sixth principle is that adherence to constitutional principles found within the Bill of Rights and State constitutions is fundamental to our system of government and free society. Those principles ought not be interfered with or undermined. They all are on equal footing. No one is junior to another. Each must be valued and protected.

The Jury is Fundamental to Conservative Values

             Each of these essential conservative principles, interestingly enough, is directly advanced by the concept of a jury deciding a civil case in a trial court. Think of what a jury is. Twelve people from the community associated with the event on trial come together to determine who is telling the truth, what happened and did not happen, and the consequences for the behavior found to exist. That activity directly involves all six of the principles a conservative holds dear.

The right to a jury trial in a civil case is, in fact, one of the enduring constitutional principles on which this nation is built. One of the rights specifically enumerated in the Bill of Rights is the Seventh Amendment right to trial by jury in civil cases and its corollary in state constitutions. This right is so fundamental that its deprivation was listed as a grievance against the King in justifying independence in the Declaration of Independence.

The jury is the essence of local control and small government. It is made up of citizens exercising their most fundamental right of citizenship. It not only allows, but depends on, public participation. It is not susceptible to corruption or political whim, but focuses only on doing justice in one case. And it instills in each citizen a degree of involvement in the judicial system those never living in a free society cannot understand. As Chief Justice Taft put it, “[t]he jury system postulates a conscious duty of participation in the machinery of justice which it is hard for people not brought up in fundamentally popular government at once to acquire. One of its greatest benefits is in the security it gives the people that they, as jurors, actual or possible, being part of the judicial system of the country, can prevent its arbitrary use or abuse.”[ii]

The jury is wholly and truly immune from elitism and special interest. The jury speaks with one voice regarding what is the acceptable community standard. It does not depend on the elite special interest, but on the facts and law of the case it is deciding.

The very essence of what a jury does is to hold actors responsible and accountable for their actions in terms of monetary reward. The jury imposes accountability and responsibility at its most core point, in a case where harm is inflicted. Please do not forget, however, that it is not just the plaintiff who benefits from this exercise. The vindicated defendant does as well.

Juries act in cases where life and dignity of life or ownership and control of property are at issue. Advancing these principles as it does, how can the jury be anything but fundamental to conservatism?

Tort Reform is Antithetical to these Conservative Values

And what exactly is “tort reform?” Plain and simple, it is the effort to undermine or eliminate the ability of a civil jury to determine just compensation for victims of tortious conduct, or to determine innocence for those accused of such conduct. It comes in four basic forms:

  • Arbitrary predetermined Caps on damages an injured person may recover;
  • Mandatory arbitration;
  • Preemption by big government regulation;
  • Procedural devices making it more difficult to get the merits of the case to the jury.

Unlike the jury trial, these tort reform efforts cut against the conservative ideas I’ve listed.

Caps on damages are a tort reform tactic that only works to devalue life and dignity while undercutting the community voice. An elite, special interest decision-maker decides ahead of time the compensation for a paralyzed mother who can no longer hug her children because someone else was careless. They reward irresponsible behavior by limiting the recovery, irrespective of the merits of the case and the harm caused.

Mandatory arbitration replaces the community voice with a hired person who is paid to listen to the case and decide it all within the quiet privacy of a hotel conference room rather than in the light of public view in a courtroom. Similarly, preemption allows the technocrat at a government agency to impose his or her will on us all by deeming a product that maims or kills “safe,” and beyond the civil law of the states. And what of these procedural gotchas? We hear the cry almost daily of the criminal defendant who escapes responsibility because of a technicality. Yet, some think it’s acceptable in the civil realm to allow hyper-technical gotchas to eliminate the constitutionally-vest community voice of the jury.

Clearly, each of these tort reform measures is directly at odds with the conservative values we cherish.

Final Thoughts—The Value of the Jury.

I closed the debate article with words our Founding Fathers spoke about the jury. Here I offer the words of another who jealously observed the importance of the jury when our nation was but an infant. The French Observer, Alexis DeTocqueville, wrote eloquently about the importance of juries in our system of justice:

My subject having led me to discuss the administration of justice in the United States, I shall not leave it without speaking of the jury. . . .

To regard the jury simply as a judicial institution would be taking a very narrow view of the matter, for great though its influence on the outcome of lawsuits is, its influence on the fate of society itself is much greater still. The jury is therefore above all a political institution, and it is from that point of view that it must always be judged. . . .

The jury system as understood in America seems to me as direct and extreme a consequence of the dogma of the sovereignty of the people as universal suffrage. They are both equally powerful means of making the majority prevail.

Juries, especially civil juries, instill some of the habits of the judicial mind into every citizen, and just those habits are the very best way of preparing people to be free.

Juries teach men equity in practice. Each man, when judging his neighbor, thinks that he may be judged himself. That is especially true of juries in civil suits; hardly anyone is afraid that he will have to face a criminal trial, but anybody may have a lawsuit.

Juries teach each individual not to shirk responsibility for his own acts, and without that manly characteristic no political virtue is possible.

Juries invest each citizen with a sort of magisterial office; they make all men feel that they have duties toward society and that they take a share in its government. By making men pay attention to things other than their own affairs, they combat that individual selfishness which is like rust in society.

Juries are wonderfully effective in shaping a nation’s judgment and increasing its natural lights. That, in my view, is [the jury system’s] greatest advantage. It should be regarded as a free school which is always open and in which each juror learns his rights, comes into daily contact with the best-educated and most-enlightened members of the upper classes, and is given practical lessons in the law, lessons which the advocate’s efforts, the judge’s advice, and also the very passions of the litigants bring within his mental grasp. I think that the main reason for the practical intelligence and the political good sense of the Americans is their long experience with juries in civil cases.

I do not know whether a jury is useful to the litigants, but I am sure it is very good for those who have to decide the case. I regard it as one of the most effective means of popular education at society’s disposal.[iii]

DeTocqueville, like Justice Taft, understood that juries are essential and ought to be trusted. Those who blindly call today for “tort reform” do not.

Tort reform tactics replace the community voice with the elite, bureaucratic voice, which is antithetical to what our Founding Fathers intended. Think tanks, lobbyists, and technocrats in government agencies decide in advance what life is worth, what actions are right or wrong, and how behavior is to be checked, not peers within the community. They decide what is safe and unsafe, and what is acceptable and unacceptable irrespective of the will of the people. In no way does this align with conservatism. I know this because I am a conservative true to my conservative values, and therefore, I oppose tort reform.

[i] Google the title and you can find the text of the lecture in many places. It is on the Heritage Society’s site here: http://www.heritage.org/research/lecture/ten-conservative-principles.

[ii] Balzac v. Porto Rico, 258 U.S. 298, 310 (1922) (Taft, C.J., for the Court).

[iii]Alexis DeTocqueville, Democracy in America (eds. J. P. Mayer and Max Lerner, trans., George Lawrence, Harper & Row, 1966, pp. 249-53).

Why we don’t want to be like Texas!

The following is an article published in the Winter 2015 issue of the ATLA Docket, the Arkansas Trial Lawyers Association’s quarterly magazine. ATLA members, legislators, and citizens have all contributed to the magazine, and we at ATLA feel like there is a great deal of helpful information to share! If you’d ever like to ask any questions about any articles posted here, please email us at arktla@arktla.org. We’ll be happy to chat with you! Now, on to the article. Why we don’t want to be like Texas!

Why We Don’t Want to be Like Texas

By Matthew Hass
ATLA is proud to be an organization made up of a diverse group of advocates who rally around one passion: protecting our citizens with the promises of the 7th Amendment of the United States Constitution, as well as multiple offerings in the Arkansas Constitution. Arkansas’s Constitution says in Article 2 Section 7, “The right of trial by jury shall remain inviolate, and shall extend to all cases at law, without regard to the amount in controversy . . ..”

In addition, Article 5 Section 32 states, “Provided that otherwise no law shall be enacted limiting the amount to be recovered for injuries resulting in death or for injuries to persons or property.”

Since 1874, Arkansas has held these protections sacred, but this year, some special interests are pushing for Texas-style tort reform. This threatens to violate those provisions by which we’ve governed ourselves for a hundred and forty years. In Arkansas, we still have the right to have our community voice speak to what is right and wrong instead of big government doing that for us. The Nursing Home lobby, the U.S. Chamber of Commerce, and Koch Industry front groups such as the American Legislative Exchange Council (ALEC) are the biggest drivers of special interest tort reform efforts, and have long since held up Texas as the poster child for tort reform. Here we offer a few of the many reasons why the broken promises of tort reform are wrong for Arkansans.

1. Arkansans retain their civil liberties where Texans’ have been stripped away.
In 2003, Texas passed Proposition 12, a sweeping tort reform bill that has harmed countless Texas citizens. Proposition 12 denies Texas citizens of their right to hold wrongdoers accountable by raising the standards by which one may hold them responsible to an impossible level. It’s a clear case of big government making the rules for everyone, instead of a local jury of twelve people deciding what’s best for their community. Sadly, there is no accounting for the number of legitimate lawsuits that can’t be taken to court because the existing cap on damages is far less than the amount that it costs to bring complex cases to trial. As a result, there are endless examples of tragic cases that ended with no consequence to negligent caregivers or broken hospital systems. For links to come of those stories, visit www.arktla.org/tragicoutcomes.

2. Arkansas outperforms Texas in nursing home quality.
In the past, Families for Better Care (www.familiesforbettercare.com) has published a Nursing Home report card that analyzes nursing home performances across the nation. The unfortunate title of “dead last” belongs to Texas for the past several years in a row. The scoring system gives a grade from A-F for every state. Texas receives an overall grade of F while also scoring F’s in six of eight grading categories, including health inspections, verified ombudsmen complaints, and direct care staffing. Arkansas, on the other hand, has improved slightly from last year and received an overall grade of C. While a C is an improvement, when it comes to the care of our most vulnerable, we should never stop efforts to improve until we earn an A+. As we struggle to improve the quality of our nursing homes, why would we ever enact legislation that would insulate operators from accountability instead of enacting legislation that makes the homes safer? Some nursing home chains want immunity, but if their homes were safer, they simply wouldn’t need it. Let’s not take Arkansas down the Texas path, where legislation hinders quality improvements and insulates those giving bad care.

3. Texas has created a safe haven for dangerous doctors.
The Texas Legislature mandated a dangerously low standard of care when, in Proposition 12, they set the standard for bringing lawsuits at Gross Negligence. This means that a doctor or nurse would have to carry the specific goal of killing or maiming a patient to be held accountable for causing harm. This has simply allowed the six percent of bad doctors who account for 60 percent of all medical malpractice lawsuits to continue to make the same mistakes over and over. This year, we have learned that in the United States, there are 440,000 deaths every single year due to preventable medical errors. That makes preventable medical errors the third leading cause of death in America, just behind heart disease and cancer. Texas tort laws do nothing to address this problem, and instead insulate the bad procedures and broken systems that lead to these deaths. A handful of doctors who have problems practicing elsewhere due to committing preventable medical errors are free to continue to practice in Texas. Arkansans deserve the safety that comes with transparency and accountability.

4. Arkansas outperforms Texas in physician supply.
According to a 2012 study by the CDC, Arkansas has 36.5 primary care physicians per 100,000 people. while Texas has 33.6 primary care physicians per 100,000 people. The study shows that in the years between 2002 and 2012, the physician supply across the nation remained stable. Though Texas tort reform advocates love the claim that tort reform increased their physician supply, the numbers don’t back their assertion. Taking away the rights of injured patients simply doesn’t increase physician supply.

5. Medical Malpractice insurance costs more in Texas.
Despite all of the talk about how tort reform improves insurance rates, the numbers tell a different story. In 2014, the average Arkansas malpractice premium is $25,036 where in Texas it is $33,249. The insurance companies have paid out far fewer claims, but the insurance companies are the only ones who see real savings. And, despite the restrictive tort laws, new studies show that how a doctor actually practices medicine is not impacted by the presence of caps on damages. As our system is fee-for-service, there has been virtually no change on the number of tests.

6. In Arkansas, the lives of children, the elderly, and stay at home mothers are held at equal economic value as any other person – not so in Texas.
When lawmakers decide that one person’s value is greater than another, we all lose. Who can quantify the value of a human life? Does an unborn fetus have less value than the man who fathered him or her? In Texas, where caps on non-economic damages are part of state law, the children that are protected with such fervor while in the womb have very little economic value in a civil case. The mother carrying two or three other children in her mini van, struck by a drunk driver – they have no so-called economic worth either. The grief stricken father has no avenue by which to hold the drunk driver accountable. In Arkansas, though, every life is still considered equal.

7. In Arkansas, the Constitution remains the driver of our lawmaking process…but not in Texas.
I consider trial by jury as the only anchor ever yet imagined by man, by which a government can be held to the principles of its constitution. – Thomas Jefferson

How many quotes can I find to remind people that access to the civil justice system was of paramount importance to our Founding Fathers? If you want to check out a few, go to www.arktla.org/founderquotes. Protecting the civil jury trial as a cornerstone of liberty is ingrained into every fiber of the Constitution. When our founders broke away from England, they did so with a list of grievances. Most notable for our current purpose is that a major grievance was the lack of a truly just civil justice system. The king was judge, jury and executioner, and our Founders dreamt of a better way, where the people governed themselves. This experience formed their worldview and shaped every word of the Constitution. They created an amendment for the civil jury trial and they were very specific about things such as the importance of not capping the damage amounts a jury could award. Texas has deemed big government backed by special interests to be a better voice for their people, but Arkansas still holds local control very closely.

So I ask – why would we ever want to be more like Texas? Arkansans are a community of people whose representatives trust their wisdom to decide for themselves how to resolve a civil dispute, as the Constitution intended. They trust them with civil jury trials just as they trust them with criminal trials and deciding the fates of murders or rapists. Arkansans know that this is the core of government by the people, and will not be hoodwinked by special interest groups trying to tell them otherwise. There is no governing by the people that is more local than twelve jurors sitting and listening to the facts of an individual’s case, and that is something we’ll take over a big Texas style government. Arkansans are compassionate, and Arkansans have a very strong, unbreakable sense of responsibility. This is a result of the community shaping each and every one of us from the day we are born until the day we are asked to perform one of the most sacred civic duties, serving on a jury. This is the essence of local control, and is a principle and a way of life that ATLA will continue to defend with vigor.

Sources:

1 – http://nursinghomereportcards.com/2014/09/10/nursing-home-report-card-shows-22-minutes-difference-quality-care-crummy-care/

2 – Oldmixon, Seth. (January 2007). The Great Medical Malpractice Hoax: NPDB Data Continue to Show Medical Liability System Produces Rational Outcomes. Public Citizens Congress Watch. Retrieved from www.citizen.org/documents/NPDB%20Report_Final.pdf

3 – James, John T. (September 2013). A New, Evidence-based Estimate of Patient Harms Associated with Hospital Care. Journal of patient Safety. Volume 9, No. 3. Retrieved from http://journals.lww.com/journalpatientsafety/Fulltext/2013/09000/A_New_Evidence_Based_Estimate_of_Patient_Harms.2.aspx

4 – Hing, Esther and Hsiao, Chun-Ju. (May 2014) State Variability in Supply of Office-based Primary Care Providers: United States, 2012. NCHS Data Brief, No. 151. Retrieved from http://www.cdc.gov/nchs/data/databriefs/db151.htm

5 – Medical Liability Monitor’s Annual Rate Survey, 2014.