Second lawsuit filed against medical tort reform amendment

A second lawsuit was filed in the Arkansas Supreme Court Thursday (Sept. 1) against an amendment that, if approved by voters in November, would limit attorney’s fees and direct the Legislature to set limits for non-economic damages in medical lawsuits.

The suit alleges the proposed amendment’s sponsors created an insufficient ballot title, failed to comply with the law while gathering signatures, and failed to collect enough signatures. It calls for the amendment to be removed from the ballot and, if not, its votes not counted.

The measure – An Amendment to Limit Attorney Contingency Fees and Non-Economic Damages in Medical Lawsuits – would direct the Legislature to set a cap of at least $250,000 for non-economic damages such as pain and suffering in medical injury lawsuits. It also would limit trial lawyer contingency fees at 33 1/3 percent after expenses. The amendment would not affect economic or punitive damages and would not apply to workers’ compensation cases.

The suit was filed by the Committee to Protect AR Families along with Col. Mike Ross, retired Circuit Judge Marion Humphrey, James Brooks, Adam Jegley and Martha Deaver. It is an original action complaint, meaning it went directly to the Supreme Court. The attorneys are Brian Brooks of Greenbrier; Jeff Priebe of James, Carter & Priebe, LLP of Little Rock; and Breean Walas of the Walas Law Firm.

On Tuesday, Fairness for Arkansans, which was created by the Arkansas Bar Association, announced in a press conference Monday that it had filed a lawsuit against the amendment that day.

Chase Dugger, executive director of Health Care Access for Arkansans, the group sponsoring the amendment, said, “This is the second desperate attempt in a week to stop Arkansas voters from having a voice in getting this inflation of health-care costs under control. We followed all the rules and took the proper legal paths to get the amendment on the ballot. Much like the lawsuits they file against doctors and hospitals, these lawyers sue on every issue they can think of, hoping anything will stick and pay off for them.”

The lawsuit by the Committee to Protect AR Families says the ballot title “is materially misleading and it fails to convey an intelligible idea of the scope and impact of the Amendment.” It says the amendment and ballot title state that it would not supersede or amend the right to a jury trial when it in fact does so.

“By its own terms the Amendment and Ballot Title take away a person’s constitutional right to have a jury of local citizens award damages that the jury deems appropriate,” the suit says.

Other complaints include:
• The suit says the amendment’s popular name “is replete with partisan coloring in order to appeal to voters.”

• It says the ballot title and amendment do not define “non-economic damages,” “disbursements,” or “health-care services.”

• It says the amendment, popular name and ballot title do not explain how it would remove rule-making authority from the Arkansas Supreme Court.

• It says the amendment, popular name and ballot title would give the Legislature the authority to define any personal injury as a medical injury.

The lawsuit also says the bill’s sponsors failed to certify that each of its paid canvassers had passed a criminal background check 30 days prior to the registration of the paid canvasser, and that the sponsors failed to comply with state filing requirements.

The suit says that of the 92,997 signatures verified by the secretary of state, more than 35,000 were suspect because of the lack of background checks and for other technical reasons. The effort was required to collect 84,859 signatures.