The Justice Case
 

This is the debate case that Will and I used for the second half of the 2005-2006 season. If you notice, it takes a totally opposition position as our former case for that season.

 

This is not the final version we used at nationals, but somewhere along the line that copy was lost. This is the latest (yet full of bugs and typos) version we have. 

Chief Justice Gerry L. Alexander was right when he said, “The failure to afford all of our citizens access to civil justice strikes at the heart of what this nation stands for — liberty and justice for all.”

 

Our nation founded upon the principles of justice, and our government was established as a mechanism for achieving that justice. Because we recognize this the affirmative team firmly stands “Resolved: that medical malpractice law should be significantly reformed in the United States.”

 

First, let’s take a look at Observation 1. Topicality, where we’ll define some important words you’ll be hearing today.

 

1. Non-Economic Damages: “Damages payable for other than monetary losses, such as pain and suffering.”[1] So a cap on non-ec damage awards would be a limit of the compensation that an injured patient could recover, regardless of the jury’s decision.

 

2. Joint and Several Liability is the legal philosophy that [when one or more doctors are liable for a malpractice incident] a doctor can be sued for up to 100% of the malpractice incident, even if he was only the cause for part of it. In other words, he can be sued for someone else’s mistake.

 

With that, let’s look at the criteria (or the standards) which the current system must meet. Criteria are basically the judging mechanism, or the lens in which to view this round. Every argument in the round, both affirmative and negative, must correlate in some way with the criteria. Observation. 2. The Criteria for the Status Quo.

 

  1. Success. It might sound kind of obvious, and, well… that’s because…it is. We don’t need policies that fail. Success is defined by Princeton University's WorldNet [2.1][2] Dictionary, 2003, “an event that accomplishes its intended purpose.” This should be common sense. If a law is not successful, it should not exist. It’s just a waste of paper and ink.

 

  1. Justice. If a policy is not just, then it is not justified. Justice is the first thing you should measure this round by.  Unjust laws (laws which do not give each person their due, including the recognizing of their due rights) should have no role whatsoever in American law. America was founded on the principle of “Liberty and Justice for all.”  The reason is that the law is just a mechanism to achieve justice. As Raymond Charles observed, “A mechanism is all the law was ever intended to be.” 

 

Now that we see the criteria that the status quo must uphold, let’s move on to Observation 3: The Plan.

 

Our agency will be each of the state legislatures.  Enforcement will be the state governments and their courts.  No funding is necessary.

 

Mandate 1: Abolish caps. All caps on damage awards in medical malpractice law shall be abolished.

 

Mandate 2: Abolish Joint and Several Liability. In states that have not already done so, “Joint and Several Liability” shall be replaced with proportional liability.  Under proportional liability, in all medical malpractice lawsuits involving the fault of more than one party the court will enter a judgment against each party liable only in accordance with that party's percentage of fault.

 

In other words, a doctor cannot be sued or punished for someone else’s mistake.

 

With that let’s move on the Observation 4. Reasons for Decision.

 

  1. Unsuccessful caps removed [fulfills criterion 1]

 

Caps are instated to significantly lower compensation for victims of malpractice in order to lower insurance premiums for doctors. Unfortunately, caps do NOT reduce premiums. Let’s look at three points concerning this.

 

a.     Caps attempt to solve the wrong cause

 

The reason insurance prices are fluctuating has nothing to do with the actual malpractice claims filed, but instead are caused by the insurance cycle, and the competitive structure of the market itself.

 

According to Robert Kaestner [PhD in Economics], 2003[3]

 

"[T]here is little evidence that the size and number of jury awards are the main determinant of the increase in malpractice premiums. The insurance cycle and competitive structure of the insurance market are primarily responsible for the ups and downs of malpractice premiums.”

 

b.     Other awards will increase

 

Alec Bayer, Houston Journal of Health Law and Policy, 2005[4]

 

“According to the Congressional Budget Office, caps will decrease premiums by less than 0.5%. Notably, noneconomic caps would minimally affect insurance premiums because economic damages, such as medical bills and lost wages, have increased; that amount has no ceiling. Additionally, caps only apply to litigated cases, and, "less than two [percent] of malpractice claims result in a winning verdict at trial, according to insurance industry estimates."

 

c.       The insurance companies themselves say caps don’t work

 

Kathy A. Klein, APN, MSEd, reinforced this idea in Nurse Practitioner magazine in 2005[5]

 

“So what does the insurance industry have to say? The nation’s largest malpractice carrier, GE Medical Protection stated in 2004 that damage caps will not lower premiums6 and has requested premium hikes in states with damage caps—a 29.2% increase in California and a 19% increase in Texas.6 The American Insurance Association said insurers never said that damage caps and tort reform will result in lower premiums.7 St. Paul Insurance Co. said Florida’s damage caps will produce little or no savings on malpractice premiums.6 Medical Assurance Co. of Mississippi said damage caps and tort reform will not affect malpractice rates.8 SCPIE Holdings, Inc. of California said the problem with premiums is self-inflicted by the insurance industry.9”

 

Caps don’t lower insurance premiums like they should. If the cap doesn’t do what it should, of what use is it? If a restriction, such as a cap on awards, isn’t justified then it should not exist. Unjustified restrictions have no place in the American law. With the elimination of caps, we will be fulfilling our second criterion of success.

 

  1. Justice for Victims [fulfills criterion 2]

 

A cap is a limit on how much compensation a patient may receive, regardless of how much harm has been done to them. Considering the high costs of the litigation process, the caps make it economically impossible for patients to ever have their day in court, because with a cap, for many people the costs of the suit would be more than the compensation they could receive.

 

As Wilbur O. Colom, J.D., said in 2005[6]

 

“Before supporting proposals that deprive individuals of their legal rights, first consider the devastating effects that legal limitations have on injured people. The only people affected by caps are those individuals with the most egregious cases where there is clear negligence. Because these cases are so expensive to bring and the cap is so restrictive, victims are often unable to obtain counsel and consequently are left with no compensation for their injuries.

 

The right to have access to the courts has been a recognized right in many important legal documents such as the Magna Carta, the Declaration of Independence and over forty state constitutions. Its importance is obvious, and it has been a landmark of our jurisprudence from our Anglo-American roots, to Marbury v. Madison, to modern-day victims that are unable to afford to file a claim.

 

When you can’t access the courts, you can’t receive justice. Our plan is stopping this by abolishing caps. This fulfills our first criterion of justice.

 

  1. Justice for doctors [fulfills Criterion 2]

 

According to attorney Henry Cohen, 2005[7]

 

“Advocates of abolishing or limiting joint and several liability argue that it “frequently operates in a highly inequitable manner — sometimes making defendants with only a small or even de minimis percentage of fault liable for 100% of plaintiff’s damage.”

 

Doctors can be sued for someone else’s mistake, not having their punishment and/or compensation equal with their amount of damage. This blatantly violates justice. We’re solving that by replacing it with proportional liability, where a doctor can only be sued for his harm, and no one elses.  This fulfills our first criterion of justice.

 

-Conclusion-

We hold that it is self evident as to why it’s obvious why an unjustified and unsuccessful policy should be repealed. With our plan we will be ending the violation of justice that is found in the status quo, will be opening the courts to the victims who have been grievously harmed, and will also be holding doctors liable ONLY for their harm, and not another’s.

 

For the sake of recognizing justice and success in the laws of the United States, I emphatically affirm this year’s resolution.

 

I now stand ready for cross-examination and other points of clarification.



[1] Congressional Budget Office, "Limiting Tort Liability for Medical Malpractice" an ECONOMIC AND BUDGET ISSUE BRIEF, January 8th, 2004

http://www.cbo.gov/ftpdocs/49xx/doc4968/01-08-MedicalMalpractice.pdf

 

[2] WorldNet 2.1 is a dictionary developed by the Princeton University Cognitive Science laboratory under the direction of George A. Miller, Professor Emeritus of Psychology, Dr. Christian Fellbaum [Princeton Senior Researcher], Randee I. Tengi [from the Center for the Study for Brain, Mind, and Behavior], and four other professionals from Princeton.  Published July 2005.

 

[3]  Robert Kaestner Ph.D.(in economics, he is an economics professor in the University of Illinois, Chicago,) "Can Caps on Jury Awards Solve the Healthcare Problem?" Published by the Institute of Government and Public Affairs, 2003  http://www.igpa.uiuc.edu/publications/pdf/medical-malpractice-caps-revised.pdf

 

[4] Alec Shelby Bayer, researcher, “Looking Beyond the Easy Fix and Delving into the Roots of the Real Medical Malpractice Crisis,” published by the Houston Journal of Health Law and Policy, [a publication peer-reviewed by experts in the field], Spring, 2005, Volume 5, No. 1, Lexis Nexis

 

[5] Cathy A. Klein, MSN, MSEd, APN, Esq. [Legal File Editor], “Damage Caps and Malpractice Premiums”, and published by Nurse Practitioner, August of 2005, Vol. 30 Issue 8, p7, 1p; [found in the EBSCOhost database]

 

[6] Wilbur O. Colom (J.D.) [Founding Senior Partner, The Colom Law Firm,] “Medical Liability Premiums,” Congressional Testimony, Jun 14, 2005 Federal Document Clearing House, accessed via LexisNexis

 

[7] “Medical Malpractice Liability Reform: Legal Issues and Fifty-State Survey of Caps on Punitive Damages and Noneconomic Damages” article written by Legislative attorney Henry Cohen from the American Law Division, and published by the Congressional Research Service (CRS) and the Library of Congress on April 11, 2005 http://shelby.senate.gov/legislation/MedicalMalpractice.pdf