Trial Magazine

In 2006, Michelle McCall bled to death during childbirth at a medical center in Fort Walton Beach, Fla. Her death was due to the negligence of U.S. Air Force doctors and personnel. After a verdict for her family, the court cut the economic dam-ages in half pursuant to a state cap. In 2014, the Florida Supreme Court held that the cap was unconstitutional because “it imposes unfair and illogical burdens on injured parties” and saves “a modest amount for many by imposing devastating costs on a few.” That was the judicial system at work—protecting people’s individual rights.

Fast-forward three years to a world where every American’s rights are at risk because of an anti-civil-justice majority in Congress. In late February, H.R. 1215, the deceptively named “Protecting Access to Care Act of 2017,” was introduced—but it would do nothing of the sort. Instead, it is an all-out assault against states’ rights and against people’s individual rights that would severely limit the ability of injured patients and their families to hold health care providers accountable. It broadly preempts all state laws regarding joint and several liability, the availability of damages, and periodic payments of future damages as they apply to medical negligence, products liability for drugs and devices, and even nursing home cases.

But one of its most egregious provisions is its direct preemption of every state’s constitution by capping noneconomic damages in lawsuits against health care providers to $250,000 in the aggregate, even in wrongful death cases involving multiple defendants. Currently, five states constitutionally prohibit damages caps. Another three prohibit them in wrongful death cases, including medical negligence. And at least one dozen state supreme courts have struck down caps (though some state legislatures have reenacted the caps with the hope that newer judges will take a different view).

H.R. 1215 is just the tip of the iceberg. The amount of tort “reform” bills moving with unprecedented speed through Congress without one single hearing is unheard of. Some readers may think, “How does a medical malpractice, class action, or drug and device bill affect my practice?” It affects every single plaintiff and trial attorney. If any of these bills become law, the U.S. Chamber of Commerce and other organizations like it will feel emboldened to push more measures at the federal and state levels. Bit by bit, they will chip away at all of our practices and make it impossible for our clients to obtain justice.

In November, when America voted for change, it sent a message. But that message did not include relinquishing the right to hold negligent corporations and wrongdoers accountable.

We’re facing the prospect of a ruleless society where chaos reigns. And America did not vote for chaos.

So what can we, as trial lawyers, do about it? We need to send a strong mes-sage to Congress. Tell your senators to vote “no” on each anti-civil-justice bill. AAJ has an online tool that will allow you and your clients to automatically write or call your senators. Please visit www.takejusticeback.com/Attorney Action2017 and www.takejusticeback.com/ProtectMyRightToFight for more information.

You can also participate in AAJ’s voluntary membership assessment, which is funding an aggressive digital communications, messaging, and advocacy plan to reach the public and legislators to tell the story of what we and the civil justice system do to protect the rights of all Americans. For those of you who have already contributed, I sincerely thank you. For those who have not yet contributed, I implore you to do so. The money raised is invaluable to AAJ’s efforts to fight back and protect the civil justice system. Please visit www.justice.org/fightback for more information and to contribute.

And in the meantime, continue to do what you do best—be a staunch advocate for your clients in the courtroom.

Julie Braman Kane is a partner at Colson Hicks Eidson in Coral Gables, Fla. She can be reached at julie.kane@justice.org.