sets for individuals covered by conforming health plans.164 In short, the proposal is an effort to sneak in through the side door restrictions on tort actions.
Having failed to convince Congress to curtail claimants’ rights, opponents of
the liability system hope to gain a more favorable reception in federal and
state courts.165 Judges should not go along. By doing so, they would give
litigation opponents a victory the democratic process denied them.
The MOOPL proposal is based on a host of unwarranted and erroneous
assumptions and unrealizable expectations. From a policy standpoint, it con-
tradicts the long-standing principle that persons sustaining medical malprac-
tice and other tort-related injuries should be able to easily obtain all the health
care they need as a result of their injuries.166 Injured persons are already being
denied adequate compensation for their injuries.167 “[P]laintiffs on average
recovered just over half their costs,” observes Stanford professor Deborah
Rhode, “and those with the most severe injuries ended up with only a
third.”168 The MOOPL proposal would substantially worsen their plight.
Winners under the proposal would be providers and liability carriers who
commit and profit from patient injuries. The losers would be innocent persons
who were left to bear the entire risk of inadequate recoveries, other members
of their health plans who would bear increased insurance costs, and ulti-
mately, the public. The proposal must be rejected.
164. See, e.g., Stinnett v. Tam, 198 Cal. App. 4th 1412, 1418 (Cal. Ct. App. 2011) (
reducing, upon defendant’s motion, jury’s award of $6,000,000 noneconomic damages to plaintiff to $250,000 pursuant to California’s MICRA cap).
165. See generally Tort Reform, supra note 163 and accompanying text.
166. See Kenney v. Liston, 760 S.E.2d 434, 445 (W. Va. 2014) (“The primary unifying
principle of tort law is one of corrective justice, that is, the law establishes a legal duty for a
tortfeasor to repair any damage or losses carelessly inflicted upon a victim.”).