Wampum

Valuing Pain and Suffering

Santorum Exposed, by way of Atrios, reminds us that Rick Santorum is a hypocrite with regard to statutory limits on pain and suffering awards in personal injury actions. They link to this ABC News piece:

In recent years many doctors and politicians have complained that frivolous malpractice lawsuits and disproportionate jury awards are a problem in need of reform.

But when "Primetime" did some investigating, it turned out that at least some of the people in favor of reform -- even some of its loudest proponents -- have themselves benefited from the current laws.

Sen. Rick Santorum, R-Pa., says that the No. 1 health care crisis in his state is medical lawsuit abuse and in the past he's called for a $250,000 cap on non-economic damage awards or awards for pain and suffering. "We need to do something now to fix the medical liability problem in this country," he declared at a rally in Washington D.C., this past spring.

But Santorum's wife sued a doctor for $500,000 in 1999. She claimed that a botched spinal manipulation by her chiropractor led to back surgery, pain and suffering, and sued for twice the amount of a cap Santorum has supported.

That Santorum is a hypocrite on the issue is no surprise to you, dear Wampum readers, as we informed you of that fact some time ago. See here and here.

One item in the ABC News piece did catch my attention. Senator Santorum is quoted as follows:

Santorum declined a request for an interview, so "Primetime" caught up with him at the signing of his new book in Pennsylvania this August to ask if he thinks his stance and history are in conflict.

"I guess I could answer that in two ways," he said. "Number one is that I've supported caps. I've been very clear that I am not wedded at all to a $250,000 cap and I've said publicly repeatedly, and I think probably that is somewhat low, and that we need to look at what I think is a cap that is a little bit higher than that."

Let’s leave aside for the moment the issue of Santorum sponsoring legislation that he thinks is bad public policy. Instead, let’s focus on a different issue. If, as a matter of public policy, we decide to cap awards for pain and suffering, what criteria will be used to determine the amount at which to set the cap?

One of the basic arguments for imposing a cap on non-economic damages is that juries have no reference point from which to set an award for pain and suffering. As one insurance company, arguing for a damages cap, put it:

People who serve as jurors approach the task of evaluating injuries with no reliable reference points in their personal lives and with no belief that their actions will affect them in any direct way. The same people who might have a very accurate understanding of the value of a house, a car or a loaf of bread have no measuring stick with which to gauge the value of a life or a disabling injury.

Now, I do not think that is right. Ordinary people have a great deal of experience in placing monetary values on pain. If a patient pays $30 for a novocaine shot to avoid a half hour of pain at the dentist’s office, has that patient not placed a value on the avoidance of pain? Merck sold a couple billion dollars per year of Vioxx to people seeking relief from pain. Were those patients, as well as Merck, not placing a value on the avoidance of pain?

In addition, proponents of a cap on non-economic damages are happy to allow the jury to measure the value of pain and suffering as long as the value is low. Can you imagine the hue and cry if legislation was introduced to set a floor of, say, $50,000 on all non-economic damages awards, no matter how slight the injury? Tort reformer’s heads would explode as they argued that some amounts of pain simply are not worth $50,000. That argument would presuppose that the value of pain and suffering is determinable from the evidence. Why is it also not determinable when the amount of pain is great?

That, however, is a diversion from the main point of this post. If we buy the tort reform argument that juries have no basis for valuing pain and suffering, on what basis is a legislator to do so? The jury, after all, has a specific case with specific evidence about the nature of the injury, as well as the severity and duration of the pain. The jury is deciding on the value of pain in one specific case. The legislator imposing a cap must, of necessity, decide the maximum award for all cases regardless of the specific facts. That is a far more difficult task. What criteria would the legislator use?

The most common proposal for a damages cap is $250,000. As best I can tell, that number was chosen because it was the number used in California in 1975. According to the inflation calculator at BLS, if adjusted for inflation, that cap would be a little over $900,000 today.

Would a $900,000 cap on pain and suffering be fair? Rick Santorum thinks that $250,000 is too low. Why does he think it is too low? What does he think is more appropriate? What criteria did he use to make that determination? The proponents of a cap owe it to the public to explain exactly how they determine the level of the cap. I have never seen such an explanation. Why is that?

My guess is that the proposed level of a cap on non-economic damages has nothing to do with fairness to the injured party. I suspect, instead, that it involves a delicate balancing act between what is politically saleable and what the insurance industry and the other groups that fund pro-tort reform politicians want.

It would be easy for tort reformers to prove me wrong, of course. All they would have to do is to provide a decent explanation of why $250,000 is the right number. Any takers?

Posted by Dwight Meredith at November 11, 2005 02:10 PM