I am a middle of the road conservative (probably dead center on domestic issues like healthcare reform) but to try and cap damages in a medical malpractice suit is just unfair. Quite simply, it takes away the most pivotal quality of the Courts — justice. Where a person is injured by other(s) and proves with reasonable certainty the his/her damages, the injured person should be entitled to recover these damages, on a dollar for dollar basis. If someone is legitimately injured in an amount of 1 million dollars as a result of someone’s unreasonable actions or inaction, it is unfair to cap their recovery at an arbitrary number like $250,000.00.

However, there are two areas where the legal system can be tweaked to hopefully (a) discourage/eradicate/penalize cases without merit and (b) keep down judgments that are outrageous or unforeseeable.

The doors of our courts should be open to all. There is a reason that justice is blind. However, Plaintiffs and their attorneys should be tempered by statutes that will provide for the recovery of attorneys’ fees, where a defendant proves he has no liability.

First, this will make people think twice about filing unwarranted suits in an effort to squeeze out a settlement based on a defendant’s cost analysis (i.e. I might as well settle the claim for $40,000.00 where it is going to cost me $100,000.00 just in legal fees to defend).

Second, it will temper attorneys who believe in the “sue everyone” approach. Maybe investigation will be more appropriately sought before suit and the plaintiffs will actually sue the individuals who have culpability, rather than the entire world who ever came into contact with the plainitff.

The next issue is punitive damages. Punitive damage claims made by plaintiffs allow for a jury to punish a defendant, not just for the harm they caused in this matter, but to deter the type of conduct in the future. Punitive damage claims have the potential to jack up a verdict 300% or more above the actual damage caused by a defendant. It is an effective deterrent in cases where corporate defendants make conscious decisions to forego reasonable actions because its less cost effective. For instance, in the Ford Pinto cases, Ford made a conscious decision to not recall the Pinto for a defective design that caused a small percentage of the calls to catch fire. In essence, Ford said “if someone dies, we’ll pay the 4 million dollars in a lawsuit rather than recall the cars and change the design which will cost us hundreds of millions”. Punitive damages are warranted in instances like that.

But punitive damages should be reserved for the most egregious activitities. Like patent cases, medical malpractice cases should, at their outset, hold a “Markman” type hearing and let the judge, as gatekeeper, decide whether the case meets a statutorily delineated standard for “most egregious” and therefore warrants the allowanace of a potenital punitive damage claim. Weeding out cases with unwarranted punitive damages claims, will greatly reduce the burden on defendants in settling or resolving matters because Plaintiff’s demands will go down greatly and defendants will be dealing with finite damages that are quantifiable.

These two tweaks to our legal system would be a perfect middle balance for tort reform — reform I think the right and left would agree to.