The Journal of the Arkansas Medical Society Med Journal April 2019 Final 2 | Page 4

COMMENTARY
Tort Reform: an After-action
Review and a Look Forward
DARRELL R. OVER, MD, MSC, FAAFP
ASSOCIATE PROFESSOR,
UAMS (SOUTH CENTRAL), PINE BLUFF, AR
T
he U.S. Military employs
an analytical method
called an after-action re-
view (AAR). This structured process evalu-
ates what happened, why it happened, and how it
could have been done better. This process enables a
clear comparison of intended-versus-actual results
achieved and helps capture the lessons learned
from successes and failures, with the goal of im-
proving future performance. Considering the recent
effort by the Arkansas Medical Society to advance
meaningful tort reform, and the ultimate failure of
the measure, it is perhaps worthwhile to conduct an
AAR on our process to guide future efforts. Let’s first
review what Issue 1 was intended to accomplish
and the current state and national tort landscape.
Issue 1 would have set caps for non-economic
damages to $500,000 and on punitive damages to
$500,000, or three times the compensatory dam-
ages (whichever is higher). It would have limited
the contingency fees of lawyers to one-third of
the net amount recovered. The amendment also
would have decreased the supermajority vote re-
quirement in the Legislature to amend or repeal
Arkansas Supreme Court rules regarding pleading,
practice, or procedure from 66.67% to 60% and
would have required a 66.67% supermajority vote
for the Legislature to make certain changes to the
limits in the amendment.
Currently, 11 states have caps on non-econom-
ic damages for general tort or personal injury cases;
20 states have provisions capping non-economic
damages specifically in cases of medical malprac-
tice but not for personal injury cases; and 19 states
have no caps on non-economic damages (as of
2017). Among the 19 states with no non-economic
damage caps, five states (including Arkansas) have
constitutional provisions prohibiting caps at least in
certain areas. Regarding limits on lawyer contin-
gency fees, 21 states have no limitations on con-
tingency fees; 11 states have a general cap on con-
tingency fees; 16 states have a cap on contingency
fees specifically for medical malpractice cases; and,
two states have both general restrictions and sepa-
rate caps specifically for medical malpractice cases.
What happened: The Arkansas Constitu-
tion allows the Legislature to propose up to three
constitutional amendments in an election cycle. In
Sept. 2018, Pulaski County Circuit Judge Mackie
Pierce declared Issue 1 unconstitutional in that it
rolled up multiple issues in a single proposal: limiting
non-economic caps; limiting economic caps; limit-
ing attorney’s fees; and, in several ways, transfer-
ring court rule-making authority from the Arkansas
Supreme Court to the Legislature.
Citing the Arkansas Constitution, Judge Pierce
stated that proposed constitutional amendments
“shall be so submitted as to enable the electors to
vote on each amendment separately.” Judge Pierce
stated that the four provisions of Issue 1 were not
“reasonably germane” to each other and that the
“general subject” of the amendment was unclear.
He ruled the reduction in attorney’s fees an infringe-
ment of the right to freely enter contracts and that
modifying the voting threshold required in any legis-
lative process from two-thirds to three-fifths of both
houses was an internal legislative modification and
outside judicial purview. He further stated that a cap
on non-economic and punitive damages infringes on
the rights of citizens and litigants to be compensated
fully. In October, just days before early voting started,
the Arkansas Supreme Court voted 6-1 upholding
Judge Pierce’s ruling and ordered election officials
not to count votes cast on Issue 1.
Why it happened: Having a means to
rein in the Supreme Court, although a much-need-
ed reform, was probably an overreach. Both Judge
Pierce and the Supreme Court cited lack of a gen-
eral subject for the amendment and that the four
220 • THE JOURNAL OF THE ARKANSAS MEDICAL SOCIETY
provisions were not “reasonably germane” to each
other (although this terminology does not appear
in the Constitution). However, the truly weak link
was the attempt to give the Legislature control over
Supreme Court rules. A case for linkage could be
made for the other three provisions and the issue
of Legislature control should have been a separate
amendment proposal.
However, even before a court challenge was
raised for Issue 1, it suffered from “image prob-
lems.” Religious and pro-life groups such as the
Family Council and Arkansas Right to Life vigorously
opposed the amendment saying that limiting dam-
ages in lawsuits sets an arbitrary value on human
life, conflicts with biblical principles of justice and
helping the poor, and is contrary to anti-abortion be-
liefs. These groups organized meetings with church
leaders to call for the measure’s rejection and gar-
nered support from pastors to exhort their congrega-
tions to oppose the amendment. A Talk Business &
Politics Hendrix College survey of 1,701 statewide
likely voters conducted in Sept. 2018 (with a margin
of error of +/- 2.4) found that voters were already
leaning against the measure.
How could it have been better done:
We must be focused. The court decisions criticized
the lack of a central theme or “general subject.” The
AMS needs to advocate for tort reform – period. We
certainly should be able to draft an amendment on
this “general subject,” the provisions of which are
“reasonably germane” to each other. Also we need
to do a much better job of stating why tort reform is
good, not only for us but for our patients. We must be
proactive in educating Arkansans about tort reform,
but we have to emphasize why it is good for them
also. Our adversaries tainted our efforts early as
“putting a price on life,” and we must prepare to vig-
orously counter this. They certainly will try this again.
It is possible to achieve reasonable tort reform. Other
states have done so and we need to analyze how
they were successful.
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