The Constitutionality of Tort Reform

Over the last decade there has been an increasing effort at instituting tort reform, both in Florida and in many other states throughout the United States. Many consider the current tort system to be both costly and inefficient. On the other side of this same coin are those who believe, just as vehemently, that the system is one of the cornerstones of a democratic society. Those who argue for tort reform suggest that same can be accomplished without shaking this foundation. At the fulcrum of these competing points of view stands the Supreme Court whose job it is to interpret the Constitution of the state in such a fashion as to maintain its viability and yet allow sufficient malleability so as to adapt it to the changing needs of society.

There are occasions when the legislature of the state and the court differ on these issues. The legislature may, for example, consider the public need to be so great in a particular area that they pass remedial legislation which does encroach upon strict constitutional guarantees. If the court notes this encroachment but does not feel that the public interest is sufficiently weighty in terms of the tests it has laid down to guide itself, it will strike that legislation as being unconstitutional. This scenario has repeated itself on several occasions in recent years as the legislature struggled to resolve what has been termed a health law crisis. The courts have been left to wrestle with the question as to whether these legislative enactments pass Constitutional muster. The result is often frustrating for both sides. This article is intended not to promote one point of view or the other but, rather, to offer the health care provider insight into the rationale used by the courts as it approaches a solution, and the constitutionality of tort reform legislation.

To begin our inquiry, we should start in 1975. It was on July 1 of that year that the Medical Malpractice Reform Act became effective. That Act made it mandatory for a plaintiff to first submit his claim to mediation prior to filing a suit for relief in a court of law. As might be expected, within less than a year, an attack was launched against the statute suggesting it was unconstitutional. An argument was made that the Act violated the following constitutional provision:

The court shall be open to every person for redress of any injury and justice shall be administered without sale, denial or delay.

The question considered by the Supreme Court was, whether requiring a citizen to first mediate his claim placed an impermissible obstacle in his path to access the court system. In resolving the matter, the Supreme Court upheld the statute as constitutional. However, in doing so, they stated:

Even though the pre-litigation burden cast upon the claimant reaches the outer limits of constitutional tolerance, we do not deem it sufficient to void the medical malpractice law.

As is the case with many legislative acts, that was not the end of the attack on the constitutionality of the medical mediation statutes. Several years later, in February 1980, the Supreme Court again considered the statute from a different perspective. The Act provid­ed for strict time limits within which mediation was to occur and a decision rendered. If it was not accomplished within that time, the right to mediation was lost. The court noted that, on many occasions, this right was lost through no fault of the litigants. The only way to remedy this problem appeared to be for the court to interpret the statute so as to allow continuances and extensions of time beyond that originally set by the legislature. This would have provided the litigants with an opportunity to achieve their right to mediation. The court, however, felt that it was caught in a box. It had previously stated that the pre-litigation burden caused by mediation stretched the outer limits of constitutional tolerance. To now allow extensions of time would transcend those outer limits. In effect, they came to the conclusion that what was originally contemplated as an inexpensive summary procedure would, due to practicalities of application, if they were to allow extensions of time, effectively deny access to the courts. As a result, they struck the Act as unconstitutional in application.

This same constitutional obstacle lay at the center of the court's rationale in most recently striking the $450,000 cap on non-economic damages. As every physician knows, that Act was passed by the legislature as part of an effort at tort reform to alleviate the same crisis in medical malpractice that had been addressed in 1975. There was no doubt that the cap on damages did restrict the citizen's right to full redress for an injury. However, the legislature considered it an equitable compromise in the effort to provide the citizens with a guarantee of reasonably priced, effective health care.

In considering whether this restriction on the constitutional right to full redress would be allowed, the court noted that the legislature was without power to abolish such a right unless it met one of two tests:

1. That the new Act provided a reasonable alternative remedy or commensurate benefit, or
    
2. That there was a legislative showing of overpowering public necessity for the abolishment of the right and no alternative method of meeting such public necessity.

In this case, the Supreme Court felt that the legislature had not provided an alternative remedy or commensurate benefit to balance the $450,000 cap. By way of analogy, the court pointed to the workers' compensation laws. There, although the right to sue had been completely withheld from the injured party, he received the right to compensation in every case, regardless of fault. By contrast, the court did not feel that the benefits to society as a whole or to the patient were sufficient to counter-weigh the loss of full redress for malpractice. In considering the second test cited above the court held that it had not been shown that there was an overpowering public necessity for the abolishment of the right with no alternative method of meeting the necessity.

It seems, then, that only a limited number of alternatives exist to accomplish tort reform which will restrict access to the court. Either the reform must fit within one of the two tests set out above or, alternatively, the Constitution will have to be amended in some fashion to allow for the reform sought.

As noted, this article is not intended to support either proposition but, rather, to educate the physician with regard to the court's rationale as it approaches a legislative solution to a complex dilemma.