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Legislatures cap damages: Minorities, union workers hardest hit

One of the pending cases in five states challenging medical damage caps is Klotz v. Shapiro before the Supreme Court of Missouri. William H. Freivogel, director of the School of Journalism at Southern Illinois University Carbondale, ably describes the case and its Illinois counterpart in the non-profit St. Louis Beacon, "Missouri and Illinois may reconsider medical malpractice caps."

Both the AFL-CIO and the NAACP filed amicus briefs challenging Missouri's caps, making economic arguments -- class-warfare arguments -- that rightly belong in the sphere of politics and policy-making. From the AFL-CIO's brief:

Section 538.210 R.S.Mo., disparately affects the citizens of the State of Missouri that make up the organizations represented by the Missouri AFL-CIO. The noneconomic damages cap has the potential to greatly reduce a verdict given to an individual worker temporarily laid off due to an economic slump in a particular industry. Workers that earn hourly wages are more affected by the non-economic damages cap than workers that earn a salaried wage. The non-economic damages cap protects members of the health care industry from large verdicts based on non-economic damages, while providing no such protection to workers in any other industry.

And, from the NAACP's brief:

Section 538.210 fails both strict scrutiny and rational basis review. It forces minorities, a suspect class, to bear the brunt of the burden of caps. The statute also impedes minorities' fundamental right of access to the courts because their lower economic damages block their legitimate claims. More importantly, Section 538.210's objectives could be accomplished less restrictively and more effectively. As it stands, caps on non-economic damages will not accomplish lower malpractice premiums or increased access to healthcare. Thus, this Court should invalidate Section 538.210 and restore the legal touchstone of fully compensating injured plaintiffs.

Cited in the NAACP's brief is a 2007 paper co-written by a familiar subject here at Point of Law, Joanne Doroshow of the self-styled Center for Justice and Democracy. It's not just specific damage caps, it's the entire tort reform movement that embraces a "racially discriminatory agenda," she and her colleague Amy Widman argue in "The Racial Implications of Tort Reform." Tort reform is also the enemy of civil rights and environmental justice, they contend. Gracious, that's a lot of guilt to bear.

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Rafael Mangual
Project Manager,
Legal Policy

Manhattan Institute


Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.