Family Council Action Committee Policy Brief On Issue 1

Issue 1: Injury Lawsuit (Tort) Reform

Synopsis: There is good lawsuit reform and bad lawsuit reform. Issue 1, a proposed amendment to the Arkansas Constitution is bad lawsuit reform. If passed it will change how all injury lawsuits are handled. Issue 1 fails to provide a means of adequately compensating victims and sufficiently punishing those whose reckless conduct harms others. We have never opposed responsible lawsuit reform, commonly called tort reform. As far back as 2003, we did not oppose the general malpractice tort reform measures passed by the legislature. That same year, we did oppose tort reform that could have given an unfair advantage to nursing homes over good care for patients. Our position on tort reform has been consistent for the past 15 years. The success of tort reform should never be measured by the number of lawsuits filed. Successful tort reform should be measured by how fair and just it is for individual people—not just by how well it works for lawyers, nursing homes, doctors, hospitals, or corporate interests.

Issue 1 Overview

  • Issue 1 is a proposed state constitutional amendment that will appear on the ballot on November 6, 2018.
  • It applies to all personal-injury lawsuits.
  • It caps non-economic damages at $500,000 in all cases, including those for any serious injury or death.
  • It caps attorney fees at no more than one-third of their net
  • It does not cap economic damages in lawsuits.
  • It caps punitive damages at three times the compensatory damages (economic and noneconomic damages combined) or $500,000—whichever is higher.
  • It lets the legislature raise or lower the cap on attorney’s fees upon a two-thirds vote.
  • It lets the legislature adjust the caps on non-economic and punitive damages upon a two-thirds vote.
  • It lets legislators adjust caps on non-economic damages for inflation or deflation.
  • It lets the legislature make rules of pleading, practice, and procedure that affect the admission of evidence in all courts, including cases besides personal-injury lawsuits.
  • It lets the legislature define terms in Issue 1, such as contingency fee, civil action, and net amount of recovery after voters have passed it.
  • It effectively allows the legislature to require mediation before a case goes to trial.

Concerns about Issue 1

  1. Devalues Human Life: Under Issue 1, $500,000 is the most a nursing home probably would pay for causing serious injury or death to a resident. This will make it possible for corporate nursing homes to reduce care and factor the cost of the occasional lawsuit into the overall cost of doing business. It lets them itemize a resident’s death as a $500,000 expense. The same is true of other businesses and corporations.
  2. Makes It Difficult to Get a Fair Trial: Letting the legislature restrict evidence in lawsuits interferes with a fair jury trial. In 2003 lobbyists for the nursing home industry nearly persuaded lawmakers to make state inspection reports and similar documents off-limits as evidence in lawsuits against nursing homes. This prevents citizens from receiving a fair trial, because without evidence, there is no trial.
  3. Shields Corporations from Lawsuits: Issue 1 enables nursing homes and other care facilities to be so shielded from lawsuits that they can cut corners and compromise patient care knowing that they are shielded from injury lawsuits. The same is true of other big businesses and corporations.
  4. Violates Biblical Principles by Undermining Justice and Hurting the Poor: Because it tips the scales of justice in favor of trucking companies, nursing homes, factory owners, big corporations, and others who are wealthy and powerful, Issue 1 undermines the ability of the poor to obtain justice in court. This hurts them and their families.

Questions and Answers about Issue 1

Does Issue 1 put a price tag on human life?

Answer: Yes. It sets a dollar limit ($500,000) on non-economic damages in cases when a person has been severely injured or killed, and it limits punitive damages awarded in cases when a person has been severely injured or killed. These damages cannot be raised without a two-thirds vote of the Arkansas Legislature. This means wealthy people with high incomes will be able to collect unlimited amounts of money in economic damages while the elderly, the disabled, or young children with no income will be able to collect no more than $500,000 in non-economic damages.


Is this a pro-life issue?

Answer: Yes. Being pro-life means more than just being anti-abortion. The injury or death of an elderly person is a life issue. Issue 1 makes it economically advantageous for nursing homes to cut staff and reduce care, causing injury or death to elderly nursing home residents.


Won’t Issue 1 improve Arkansas’ economy and bring more doctors?

Answer: There is no indication that lawsuits are holding our economy back. Our bad tax structure is a much greater factor. One would be hard-pressed to name even one industry or health care facility that refused to locate in Arkansas simply because they were afraid of being sued.   Doctors aren’t leaving small towns because of lawsuits and Issue 1 won’t bring them back.


What is wrong with letting the legislature decide which types of evidence can be considered in injury lawsuits?

Answer: Lobbyists representing nursing homes, hospitals, and trucking companies will pressure lawmakers to restrict which evidence can be considered in court. In 2003, nursing home lobbyists tried to get the legislature to prohibit some state inspection reports, nursing home staff testimony, and similar evidence from some injury lawsuits. Without evidence, there is no case.


Don’t good doctors deserve protection from frivolous medical malpractice lawsuits?

Answer: Yes, but Issue 1 does not provide that protection. Issue 1 does not penalize attorneys for filing frivolous lawsuits, and it does not require losers to pay for frivolous lawsuits. Issue 1 does nothing to spell out protections for doctors who are practicing defensive medicine.


Can churches and pastors encourage people to vote against Issue 1?

Answer: Yes. Churches and pastors can oppose Issue 1 without concerns about their status with the Internal Revenue Service, because Issue 1 is not a political candidate running for office. Churches have always been able to oppose or support ballot measures like the state-run lottery or the constitutional amendment defining marriage as the union of a man and a woman.


Does the Bible have anything to say about lawsuit reforms like Issue 1?

Answer: Yes. Issue 1 is about who obtains justice. The Bible has a lot to say about justice. Proverbs 22:22-23 warns people against mistreating the poor and the oppressed in court. Issue 1 tips the scales of justice by favoring wealthy corporations over everyday people. In Isaiah 1:17 the Bible says, “Learn to do good. Seek justice, Rebuke the ruthless, Defend the fatherless, Plead for the [rights of the] widow [in court].” (Amplified Bible, AMP). Even those who might benefit from the passage of Issue 1 have an obligation to look out for the poor, the fatherless, and the widow.


Haven’t states like Texas had success with similar tort reform?

Answer: Issue 1 is not like the Texas law. It goes a lot farther by affecting all injury lawsuits—not just medical malpractice. That said, tort reform in Texas has not improved medical care or caused economic growth. Their economic growth is fueled primarily by their low taxes, lack of government regulation, and abundant oil and natural gas. The data indicates that tort reform in Texas has reduced the quality of care in nursing homes, let bad doctors continue practicing medicine, and has led to no net increase in the number of doctors in rural communities.