Many See Caps in Oklahoma Tort Reform Bill as Fair

June 8, 2004

Trial lawyers and doctors, who stood on opposite sides of the tort reform debate in the Oklahoma Legislature, seem to agree that the caps on non-economic damages in Oklahoma’s new law were a fair compromise, the Associated Press reported.

However, some lawmakers say the new caps have too many loopholes.

Doctors were seeking a hard, $300,000 limit on non-economic damages, commonly referred to as pain and suffering, in medical malpractice cases as a way to slow skyrocketing medical malpractice insurance rates.

Trial lawyers, on the other hand, opposed caps of any kind.

The final result was a $300,000 cap that occurs when the defendant makes a settlement offer, and the ultimate jury award is one-and-a-half times greater than the final settlement offer. The caps also can be lifted if a judge or jury determines that the defendant’s actions were negligent.

These caps only apply to non-economic damages, which are those that are subjective and cannot be measured financially, such as pain, suffering, emotional distress, inconvenience and loss of enjoyment of life.

There are no caps for economic or compensatory damages, such as medical expenses, loss of past and future earnings, loss of business opportunities or other losses that can be objectively verified.

Also, $300,000 caps implemented by the Legislature last year for non-economic damages in medical malpractice cases involving emergency room doctors and obstetricians will remain in place.

Sen. Owen Laughlin, an attorney and a member of the legislative committee that drafted the tort reform proposal, said he thinks the caps on non-economic damages implemented this year simply have too many requirements that must be met.

“You could have a $5 million verdict, but unless the defendant offered to settle for $3.5 million, the caps don’t come into effect,” Laughlin said. “And then the jury could waive the cap if it found by clear and convincing evidence that there was simple negligence.

“I don’t practice medical malpractice, never have, but it just seems to me that it would be a rare day that it would ever apply.”

However, officials from both the Oklahoma State Medical Association and the Trial Lawyers Association said they believe the caps will ultimately result in fewer cases going to trial.

“I think the caps will encourage settlements without a doubt,” said Dr. Jack Beller, an orthopedic surgeon in Norman and the immediate past president of the OSMA. “It has been shown nationwide that a reasonable cap goes a long way toward stabilizing the medical liability market … and that’s our hope.”

Tony Laizure, the president of the Trial Lawyers Association, said the caps weren’t something his group endorsed, but he believes they will provide an incentive for both parties to settle cases.

“It can really penalize people for not reaching a settlement,” Laizure said. “And it’s equitable because it gives both sides equal opportunity to gamble and lose by not settling the case.”

Beller added: “If neither side is happy with the result, it’s probably a good compromise.”

And while the caps were a point of contention during debate on the tort bill, there were a number of additional provisions that were lauded as significant reforms.

Beller said a new “I’m sorry” law that allows doctors to express sympathy to patients’ families without fear of liability is a meaningful change.

“Our doctors have been taught that if you do express sympathy, you may face it in the courtroom,” Beller said. “Now we don’t have to pretend to be heartless.”

Beller also pointed to a provision that allows doctors to volunteer their services to free medical clinics without fear of liability.

“I would say the best one for the patients and physicians has to do with the volunteer immunity,” Beller said. “Our doctors can now serve in charity clinics and make those much more available to those without insurance.”

Another provision hailed by rural lawmakers was a measure that allows farmers and ranchers to charge a fee for using their land without fear of legal litigation. The “Oklahoma Limitation of Liability for Farming and Ranching Act” included in the bill would limit civil liability for anyone who provides use of their farmland for recreational purposes, such as hunting, fishing or wildlife viewing.

“This is one of the best generators to boost economic growth in rural Oklahoma, especially in the rural western part of the state, which has many forms of agri-tourism,” said Rep. Clay Pope, D-Loyal.

Under the bill, if a landowner charged more than $10 an acre for recreational activities, visitors would be required to sign a written release of liability, which would then be legally binding. The new law does not provide immunity from civil liability for willful, wanton or malicious acts of negligence.

Copyright 2004 Associated Press. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.

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