What's Wrong With #Arkansas Ballot Issue 4! It Is A Killer For Arkansas Citizens

by Debbie Pelley, Contributing Author:  First, a Quick Summary of what is wrong with Ballot Issue 4 before a more lengthy detailed comments:

• Benefits Owners of Nursing Homes not the citizens
• Funded by multi-millionaire nursing home magnates
• Eliminates accountability on the part of nursing homes and medical providers.
• Attorneys would have little incentive to take cases of negligence with capped fees they could charge
• It is unconstitutional because it would effectively abridge citizens' constitutional right to a trial by jury
• It takes a huge settlement to make a dent in the profits of the multi-millionaire nursing home magnates; they won't stop being negligent if they don't have to pay large settlements.

Full Disclosure: I have a very personal experience that makes me feel very strongly about this Issue 4. My sister just younger than I developed a very aggressive form of Parkinson's and fell and broke her neck some 17 months ago. Since then she went to a nursing home and now two different assisted living homes in Memphis. All of them are negligent and terrible and should be sued every day. And the people making the profits from these places are usually the owners of these homes. They refuse to hire enough people to take care of the patients because it cuts into their profits. And the nurses and aides are also negligent and often cruel. There are some that are compassionate and very good with the patients, but they are not the norm. I also befriended a patient who had no personal doctor and wanted to see a doctor who agreed to see him. However, the attending nurse did not get the necessary papers signed for several days; in the meantime he developed problems and was sent out for tests; the hospital performed some type of surgery and sent him to Hospice where he died within a few days. This is the type of negligence that should be stopped with expensive settlements by the nursing homes owners in order to stop this type of abuse.

Included below is a good thorough info article sent to me by a fellow conservative. Fortunately, many liberals as well conservatives agree that Issue 4 is wrong.

Tort Reform as Proposed by Issue 4 is a Killer For Arkansas Citizens
A group calling itself “Health Care Access for Arkansans” and which is largely financed by multi-millionaire nursing home magnate Michael Morton has proposed an amendment to the Arkansas Constitution solely for the purpose of eliminating accountability on the part of nursing homes and medical providers. The Amendment, which purports to provide better access to health care for Arkansans, actually takes away rights which protects Arkansans and removes guarantees that wrongdoers are held accountable for their wrongdoing.

Before proceeding, we must note that the vast majority of doctors and medical professionals in Arkansas are good people, who are competent and well-versed in their profession, and who care about their patients. In fact, a recent study showed that approximately 1% of active U.S. doctors accounted for nearly a third of all paid malpractice claims.

However, some medical providers, such as nursing homes owned by Michael Morton, devalue human life and believe that making large campaign contributions to judges. One example is a Faulkner County Circuit Judge Maggio who is now a convicted felon for accepting bribes from Political Action Committees financed by Morton. Morton choose bribing a Judge as a much better means of limit or avoid accountability than providing quality medical care for the elderly. Now Morton has put his money into backing a proposal that seeks to fool Arkansas citizens by taking away the rights of our elderly, our children, and the most vulnerable of Arkansans who seek to obtain justice to provide better access to health care. What a farce!

The ballot title is misleading and the proposal was largely financed by Morton. It says:
“An amendment to the Arkansas constitution providing that the practise of contracting for or charging excessive contingency fees in the course of legal representation of any person seeking damages in an action for medical injury against a health-care provider is hereby prohibited; providing that an excessive medical-injury contingency fee is greater than thirty-three and one-third percent (33 1/3%) of the amount recovered; providing that, for the purposes of calculating the amount recovered, the figure that shall be used is the net sum recovered after deducting any disbursements or costs incurred in connection with prosecution or settlement of the medical-injury claim; providing that this limitation shall apply whether the recovery is by settlement, arbitration, or judgment; providing that this limitation shall apply regardless of the age or mental capacity of the plaintiff; providing that the prohibition of excessive medical-injury fees does not apply to workers’ compensation cases; providing that the General Assembly may enact legislation which enforces this prohibition, and that it may also enact legislation that determines the relative values of time payments or periodic payments and governs the consequences and penalties for attorneys who contract for or charge excessive medical-injury contingency fees; providing that the General Assembly shall enact a measure which specifies a maximum dollar amount for a non-economic damage award in any action for medical injury against a health-care provider, but that such a measure may never be smaller than two hundred and fifty thousand dollars ($250,000); providing that the General Assembly may, after such enactment, amend it by a vote of two-thirds of each house, but that no such amendment may reduce the maximum dollar amount for a non-economic damage award in any action for medical injury against any health-care provider to less than two hundred and fifty thousand dollars ($250,000); providing that the Supreme Court shall adjust this figure for inflation or deflation on a biennial basis; and providing that this amendment does not supersede or amend the right to trial by jury.”
The God-Given Right to Life
Most people could care less about the amount that attorneys are able to charge, but what is certain to happen is the same thing that would happen if doctors were told that they could charge only a fraction of the value of their services for the medical treatment they provide. In sum, attorneys will stop providing that service, just as doctors would do. And without attorneys to hold the few unscrupulous medical providers accountable, there will be no accountability and medical providers will be free to hoard patients in to their offices, treat them like cattle, and send them home with complete impunity because no lawyer will be there to protect the victims of such actions. And nursing homes will be free to disrespect our elderly, refuse to provide quality medical care, and allow the elderly to suffer and even die—all because there is a strict, severe, and unrealistic limit on accountability if Issue 4 passes.

We all value human life. We are strong supporters of the right-to-life and believe that children and human life are the greatest gifts that God has given us. And while we may be able to value cars, houses, and virtually all tangible merchandise that we buy every week, there isn’t a maximum price on the value of a human life. Yet that is exactly what Morton’s proposal seeks to do. His proposal places that value at $250,000. Who believes that their parents, their children, their brothers or sisters, or other relatives are worth only a mere $250,000 as Morton’s proposal seeks.

Imagine that your parents or a family member is in a nursing home, treated with complete disrespect, and when not receiving medical care as promised that the relative develops bed sores. Despite requests of your relative to go to a hospital or to see a doctor, the requests are ignored and ignored and ignored. Ultimately, the family member dies an agonizing death.

You seek justice —just as anyone would —because you don’t want this to happen to anyone else and because the nursing home should be held accountable and punished. Yet a Judge tells you that you can only collect $250,000 for the pain, suffering, and extreme emotional grief over the loss of your loved one. You are told that you can’t receive full justice. Instead, there is an artificially placed limit on the amount that all family members (as a group) can receive—the $250,000 must be divided between all grieving relatives. There is clearly no deterrence for the multi-million-dollar corporation owning the nursing home to do what is right, what was promised to your relative and to you, and what is required by law.

Or, imagine you are personally injured and break a leg and while in a rehabilitation center, you receive substandard treatment, which leads to a fall that causes spinal cord injury or the substandard treatment leads to a stroke and ultimately you are now a quadriplegic, with no ability to move. You can’t eat or drink but have to be fed by a feeding tube for the rest of your life. You are no longer able to drive, no longer able to move, no longer able to even dial the telephone to make a call, that you hurt every day, and your family cries every time they come to see you and a Judge tells you that you can only receive $250,000 (because that’s what Morton’s proposal—Issue 4—seeks) for your pain, suffering, and emotional harm. Oh, and by the way, your family receives nothing because $250,000 is the limit! Does anybody think that Michael Morton would believe that his well-being is worth a mere $250,000?

While those who harm our family members intentionally will be subject to God’s judgment, God’s gift of life is priceless. Morton’s group seeks to override the value that God places on our life, override the teachings of the Bible, and value our lives at a mere $250,000.

Now some might argue that there are run-away juries. But if you ask any lawyer in Arkansas, they will tell you that we don’t have them here because Arkansas people are intelligent. If anything, most lawyers—including those who are on both sides of the cases—will tell you that juries frequently undervalue the true harm caused to victims of negligence. And, if there is a jury that awards too much, there are checks and balances in place (as long as Mr. Morton isn’t able to bribe them) who handle cases if the jury awards too much money. While juries generally do not overvalue a case, it can happen once every five or ten years and judges are there to make sure that if it happens that it is promptly rectified. That’s what the Courts are for.

But Morton’s proposal doesn'’t allow for this process to occur. Instead, it implies that hard-working Arkansans are too stupid to understand how to fully compensate tort victims. It also assumes that judges are too stupid to figure out if a jury has awarded too much to a tort victim. It assumes that we Arkansans are just not smart enough to figure out how to award justice and compensate injustices. A much better proposal would be to limit Morton’s ability to charge exorbitant fees to nursing home residents (many of whom rely on state aid that we pay for just to survive). It is akin to saying that Morton can only charge residents of the nursing homes that he owns a fee of $25 or $50 per day. If someone was trying to limit Morton’s ability to receive full compensation for the services that are supposed to be provided at his nursing homes, we all know that Morton would be the first to complain about that injustice.

Under Morton’s proposal, the legislature can set the non-economic damage rates for people killed or injured due to even gross negligence of others. Husband or wife: $250,000. Homemaker with four young children: $250,000. A child: $250,000. Any family member: $250,000.

Anyone who is genuinely pro-life knows that everyone’s right to life is God-given. You can’t put a price tag on a God-given right. Yet, that is exactly this proposed amendment does, or gives the Legislature the right to do. It seeks to override the teachings in the Bible and currently in the Arkansas Constitution for well over a century.

Supporting our Constitutional Rights
We all support the Constitutional right (in both the Arkansas and United States Constitutions) to freedom of religion. We support the right to free speech. We support the right to seek redress of our grievances against the government. We certainly support the right to keep and bear arms.

Yet the proposal to cap non-economic damages virtually eliminates the constitutional right to jury trial, guaranteed in both the Arkansas and United States Constitutions. Michael Morton and his group offer no explanation as to why the Seventh Amendment of the United States Constitution (or the right to trial by jury in the Arkansas Constitution) are of less importance than the First or Second Amendments of the United States Constitution. His proposal stops a jury from doing its duty to assess the true damages and reduces whatever amount that a jury determines should be awarded for pain, suffering, emotional grief, and anything else that the Legislature defines as non-economic damages and allows that limit to be set at $250,000.

We recently noted the son of a Kansas legislator that was killed through what appears to be gross negligence on the part of a water park. The child was a mere ten years old and was on a ride which required a certain amount of weight of riders inside. The water park allowed the child to ride even though the weight requirements apparently were not met. The child’s neck was broken or injured and he died. His grief-stricken parents issued a statement speaking of the joy that the child brought to them. Yet Kansas has a law that limits non-economic damages to $250,000. In that case, it appears that the water park will avoid being held fully accountable to the victim’s family for the pain and suffering caused by their actions. It is an insult to think that this ten-year old child’s life is worth only $250,000 and it is saddening that a jury cannot assess full damages that are due to the grieving parents. After all, without full compensation by a jury, the water park has no incentive to prevent the problem from recurring. And, here, unless medical providers, like nursing homes, are held fully accountable by giving juries the right to determine the true damages, then there is no incentive to do what is right and to provide proper medical care.

Many of us remember back in the 1970’s when Ford Motor Company decided that it was cheaper to pay damages assessed in lawsuits for the deaths of, or injuries to, people caused by the exploding Ford Pinto gas tank. This has been referred to as “death math.” Without allowing juries to assess full damages, we will have the same problem here. Nursing homes, and some unscrupulous medical providers, will decide that taking away the right to trial by jury (by placing ridiculously low caps or limits on damages that can be awarded) will make it cheaper to kill or injure people and pay damages rather than providing quality medical care and performing the job they promised to perform. It will make it easier to be understaffed, to not call in doctors when needed, and to not provide medical care that is needed because only $250,000 can be awarded for pain, suffering, and emotional harm (if the Legislature sets that limit) even though you or a relative die from a painful, excruciating death.

The Golden Rule
We follow the principle of doing to others as how we want others to treat us. So put yourself in a position of losing a family member or becoming crippled due to the gross negligence of a medical provider. Is your life, is your health, is your ability to be able to get around, is the life of your child or your parents or of any relative worth of mere arbitrary $250,000?

Don'’t fall for the trickery in this proposal. This proposal isn'’t going to make healthcare more accessible. Studies have shown that states that adopted these proposals have no decrease in the medical malpractice insurance rates charged to doctors. What the proposal does is to benefit Nursing Home Magnate Michael Morton, similar multi-million dollar corporations that own hospitals and nursing homes, yet permits substandard medical care by limiting the amount of damages that can be awarded. If you want substandard medical care, to protect multi-million dollar corporations, and to know that a medical provider can injure you or a family member with almost complete impunity, then vote for this proposal. But this type of non-sense is not conservative; —it strictly limits personal responsibility and accountability. True conservatives know that this type of proposal is bad for the state and will create a slippery slope of future amendments in which no professional is held accountable for his or her wrongdoing. Is that what we want?
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Debbie Pelley is Retired Arkansas Teacher of 27 years. She is presently a grassroots citizen activist, researcher and writer who advocates for Arkansans and for transparent and limited government. She is a contribution author on the ARRA News Service.

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