This week, a North Dakota state court struck down – again – the state’s cap on damages. This cap covered patients harmed by medical malpractice for non-economic injuries like mutilation, trauma, loss of a limb, blindness, sexual or reproductive harm and other types of suffering and pain. North Dakota is another example of a state legislature flat out ignoring the knowledge and authority of judges who find caps unconstitutional, with legislatures re-passing caps at the behest of political interests in the state, forcing judges to re-visit the same constitutional problems leading to the same unconstitutional finding. This happens more often than you know.
Like other state courts, such as Florida’s Supreme Court in recent years, the North Dakota court did the extraordinarily responsible thing and examined exactly why state lawmakers re-passed a cap in 1995 and then left it in place in 2009 after the legislature revisited the issue. It’s extraordinary because courts don’t always do a deep dive into hearing testimony, despite plenty of reasons why they always should - given four decades of evidence that the insurance industry flat-out lies when it says caps are needed to control insurance rates for doctors.
Here are some examples, straight from the decision:
The 2009 legislative history offers little additional insight into whether the $500,000 cap on noneconomic damages accomplished, in whole or in part, any of the legislative goals stated in 1995 or how the current noneconomic cap would accomplish the 2009 legislative goals. … The overwhelmingly popular answer to many questions related to the medical malpractice cap was either "I don't know," or "I think ... " followed by unsubstantiated claims. For example:
Rep. Delmore: Do you have any statistics on whether since 1995 the number of lawsuits has gone up in the state or down?
Rod Pagel: I don't have any information on that nature.
Rep. Griffin: How many successful trials that have awarded for plaintiffs in medical malpractice cases in ND; have there been very many at all?
Rod Pagel: I don't know.…
Rep. Koppelman: How many states have caps?
Rod Pagel: I don't know the number of states.…
Rep. Zaiser: Do you know how many lawsuits were brought forward that were frivolous?
Bruce Levi: I don't know because there is a screening process in place in ND, where there has to be a medical expert before they can go forward.…
Rep. Griffin: In the state of ND, we didn't have caps and now we do. How are the malpractice premiums different. We should be able to see how they did or did not change.
Beverly Adams: I don't know. There isn't a direct correlation ....
Rep. Delmore: What is the average cost of malpractice premium now.
Beverly Adams: I don't know; it depends on the practice of the physician.…
Rep. Zaiser: Do you know how many claims that were covered, and what the average claim costs?
Beverly Adams: I don't know.…
Rep. Delmore: Do you have the pre-1995 number of cases that had been settled or what the outcomes was. I don't care about other states. I think we need to look at what happened here.
Larry Maslowski: I don't know if we do or not. I don't believe we have any accurate information that old, but I will look into it.
Rep. Delmore: Somebody must know what happened, obviously lawsuits were happening pre-1995, which led to why the bill was needed. There has to be some statistics somewhere that showed that there was a need to put that cap on in the first place.…
Apparently, none of the requested information on North Dakota statistics was provided as is evidenced by the dialogue between legislators during the next House Judiciary Committee hearing.…
Beverly Adams: There isn't a direct correlation [between caps and malpractice premiums] because there are a number of variables that need to be looked at when looking at caps and automatic lowering of premiums.…
Rep. Griffin: We've been told that in settlements where the jury hasn't been told that there was a cap still came under the $500,000 cap in noneconomic damages, if that were raised to $1 million dollars in extreme cases - wouldn't that give a little more leniency for the case that really should be awarded the additional amount? How would that affect the premiums.
Beverly Adams: I don't know exactly how that would impact.... We don't know how that would affect insurance premiums.… All the information I looked at, said it increased the premiums in states without caps. What the level of impact was, I don't know. Regardless of whether the premiums were increased or not, physicians perceived that states without caps were higher in premiums and was more of a problem.... (emphasis added).
“All the information I looked at.” Hhmm, ok. There’s this thing called “Google,” Ms. Adams. It is useful to pull up studies like this one, published in 2002, called “Premium Deceit: The Failure of ‘Tort Reform’ to Cut Insurance Prices." (Here’s the 2016 update).
Fortunately, North Dakota’s flimsy legislative history was more than enough to satisfy this court that such a drastic infringement on patient’s legal rights was unconstitutional. Let’s hope other states take notice.
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