Project on Medical Liability in Pa. Report Traces Historic Interplay Between Opposing Sides in Tort Reform(2)

To judge by the heated rhetoric surrounding the issue, both sides of the tort-reform debate see it as a relatively new phenomenon that has only in the past several decades pitted advocates of reform against protectors of state constitutional rights. But, according to a new report released today by The Project on Medical Liability in Pennsylvania, American tort law and the law of state constitutions have developed hand-in-hand over the past 125 years and have had reciprocal effects over time.

The report, released on the eve of the Pennsylvania state Senate debate on amendments to the state constitution to reform the medical malpractice system, is part of a series of objective analyses about the ways in which medical, legal and insurance-related issues affect the medical liability system in the Commonwealth. 

State constitutional law has become a vehicle in the movement to reform tort laws, particularly those relating to medical malpractice. In the past 20 years, dozens of tort reform statutes, including measures that cap damage awards, have been struck down by state courts as impermissible under state constitutions. At least 26 of those rulings have affected legislation dealing specifically with medical malpractice, the report says. 

“This measured, historic view of the evolution of tort reform and the long-running battle with protectors of state constitutions explodes some of the myths that have come to dominate the political discussion of tort reform's place in the medical malpractice debate,” said Susan Liss, executive director of The Project on Medical Liability in Pennsylvania. “The report's historical perspective shows that tort reform has traditionally been debated and implemented in an arena of robust and healthy political competition among its many stakeholders.” 

According to the study, “Lessons from History: State Constitutions, American Tort Law, and the Medical Malpractice Crisis,” by John Fabian Witt, professor of law at Columbia University, the history of the tort reform debate suggests that the process has inspired a range of interest groups with sufficient incentives and resources to combat any temporary imbalance in influence that one camp may attain. This emergence of powerful political constituencies on both sides, the report concludes, seems to indicate that the courts need not worry that tort reform will be dominated by one side or another. 

The medical liability crisis has generated a torrent of headlines and intense debate among interest groups, policy makers and others throughout the country. In 2003 more than 30 states considered measures to reform their medical liability systems, and at least 10 states enacted laws, according to the National Conference of State Legislatures. 

The report explains the role of state constitutions in the development of American tort law and offers insights for how lawyers, legislators and judges ought to think about contemporary constitutional law and state constitutional amendments:  

• State constitutional law has long shaped American tort law. Supporters of modern tort reform efforts should not regard the latest generation of constitutional decisions as an unprecedented threat to basic constitutional principles like separation of powers and popular sovereignty.  
• Caution is appropriate when using constitutional litigation to ward off tort reform. Historically, state courts have too often used general provisions of state constitutions--such as due process and equal protection clauses--to inhibit public policy innovations in tort law that over time have become widely respected.  
• Amending state constitutions to modify or repeal provisions from previous eras is a new and potentially beneficial development. The latest round of constitutional amendments is notable because they seek to return discretion and policy-making authority to state legislatures. They are pragmatic as well, because political stakeholders on both sides can approach these debates with roughly the same resources and sophistication.

The report also offers other historical lessons for the current debate over medical malpractice reform: 

• State constitutions and state constitutional amendments are legitimate, well-established processes for developing tort law.  
• Tort law and tort lawyers do not feel the impact of constitutional setbacks. The report cites the rise in lawsuits by injured employees against third parties, such as the manufacturers of products and machinery, as a reaction to limits inherent in the worker's compensation system.  
• Over time, lawyers for both plaintiffs and defendants have proposed constitutional amendments to tort law to advance their causes. In the late 19th and early 20th centuries, when legislation in the accident law area tended to be liability-expanding rather than liability-contracting, constitutional challenges to reforms came most frequently from repeat-offender corporate defendants. More recently, plaintiff attorneys have led the fight against changes in the tort system. The report suggests that the pendulum may swing back to defendants, who pioneered the strategy in the early wrongful death cases.

The Project on Medical Liability in Pennsylvania is a two-year program of research, consultation and communication funded by The Pew Charitable Trusts that seeks to provide decision makers with objective information about the ways in which medical, legal and insurance-related issues affect the medical liability system, and to focus attention on the relationship between medical liability and the overall health and prosperity of the Commonwealth. 

In the coming months, the Project expects to publish additional reports presenting a range of informed views on important topics that have not yet been fully explored in the public debate. Among the Project's larger initiatives is a comprehensive survey of Pennsylvania physicians by researchers from the Harvard School of Public Health, and efforts by researchers at Columbia Law School to help several hospitals across the state learn how best to discuss and resolve medical errors with patients and families.