To my chagrin I haven’t written a syllable in weeks but at least the reason makes a curious story; – for a month I’ve been camped out with a tribe of trial lawyers, trying to explain the foibles of politicians in general and Republican politicians in particular.
I’d like to say how I came to be allied with trial lawyers was due to an encounter with a wizard or genie with a sense of irony. But it wasn’t magic. It was a trial. And, more peculiarly, it was Joe Knott teaching a Bible Study class at St. Mark’s Church twenty-five years ago.
Back when Reagan was President and Jesse Helms, Tom Ellis and I were banded together it seemed we were always landing in one scrap or another and Joe Knott was one of the folks we could count on to lend a hand pulling at the oars until we got the ship off the rocks.
Joe was an Assistant U.S. Attorney under Reagan and his father, ‘JT’, was the Chairman of Democrats for Jesse when Jesse ran against Jim Hunt in 1984. When Hunt put an ad on tv showing the dead bodies of women and children killed by terrorists in El Salvador and claimed Jesse was backing the terrorist because they were right-wing ‘JT’ did the ad answering Hunt, saying Hunt had “crossed the line” and owed Jesse an apology.
Not long after last fall’s election Joe asked if I’d sit down with Dick Taylor – head of North Carolina Advocates for Justice – and talk about politics and the new Republican legislature.
Several years ago I would probably have politely turned down the invitation but that was before I heard about that trial.
Here’s what happened: A man – I can’t recall his name – had a bad back and when the pain finally got so he couldn’t stand it he had an operation and a surgeon (who it turned out had more experience with elbow than back surgeries) put a screw through the block of bone at the bottom of his spine to cure him.
Now, right in the middle of that bone was a tiny hole that nerves ran through going down into his legs; after the operation he woke in agony and the doctors gave him pain killers but the pain got worse and worse so, finally, the doctors did more x-rays and the minute a more experienced physician in back surgeries looked at the films to his surprise he saw that screw was sitting right in the middle of the hole in that bone.
The doctors immediately operated again but it was too late – the nerves were dead. The man was crippled for life.
It all ended up in court but it turned out the poor fellow with the bad back only had two kinds of luck: Bad luck and worse luck. He got a jury with six intellectuals (the trial was in a college town) and six rednecks and at the trial the doctor’s insurance company called a parade of scientists to the stand who made a startling revelation: That screw, they said, had been planted in exactly the right place by the doctor but then it had ‘migrated’ straight through that block of bone into that hole. What’s more that screw had moved without leaving a crack or gash in the bone to mark its passing.
Well, about half-way through hearing that story, I figured no intellectual was going to buy that tale but it turned out I was dead wrong. The jury split six to six – the six intellectuals said if a scientist said that screw had moved through solid bone it must be true and the six rednecks said there was no way on earth they were buying that. The jury deadlocked and argued until an unfortunate thing happened.
The jury forewoman – one of the intellectuals – told the other jurors: The law says if there’s a reasonable doubt the doctor put that screw in that hole we have to acquit him. Now, half of us say that screw moved and half of us say it didn’t and the fact we can’t agree proves there is a reasonable doubt. Of course, the jury forewoman was wrong. In more ways than one. For example, a jury doesn’t decide “reasonable doubt” as a group. Each juror decides for himself. But it sounded logical and the worn out jurors ruled for the doctor.
The night I met with Joe and Dick Taylor as soon as Dick told me about Senator Bob Rucho’s bill to cap jury awards to people who lose a limb I remembered that trial and thought: Exactly what was the loss of that fellow’s legs worth?
Senator Rucho has decided he knows the answer: He believes that fellow’s legs are not worth a penny more than $250,000.
And he believes it so firmly he’s trying to make his view the law, so no jury can award a victim of malpractice more than $250,000 for the loss of a limb – or for disfigurement, mutilation, paralysis or death.
Well, I signed on to help the lawyers stop Senator Rucho’s bill and as a result day and night for a month I’ve been studying the ambiguous distinctions between just plain negligence and gross negligence and other legal syllogisms I’ve lived happily fifty-eight years without knowing.
I’ve also found – to my surprise – I’ve landed square in the middle of a traditional and oft-repeated American political ritual: The grab for the loot.
For almost two decades North Carolina’s business leaders have happily cozied up to Democrats (from Jim Hunt to Bev Perdue) and they’ve generally fared well at the hands of those folks.
But now there’s a Republican legislature in town and everyone from the Medical Society to the Hospital Association to the Chamber of Commerce thinks they have died and gone to heaven – and the great grab has started: The insurance companies are out to pass laws to limit their risks. The corporations are out to shift their costs to taxpayers. The Medical Society wants to cap awards for malpractice lawsuits against its members. The Hospital Association wants immunity when its members harm a patient in the emergency room. And the Nursing Home Association thinks the Medical Society’s cap ought to apply to them too.
Looking back I guess Republican legislators, who for years have been treated like red-headed step-children in the General Assembly, had no chance at all when this onslaught descended on them. Suddenly back benchers – like Senator Rucho – found themselves bathed in adoration and worse, and more head-turning, for the first time they had real power. They’d have been less than human if they hadn’t found it all more than a bit pleasurable.
Senator Rucho signed on to sponsor legislation for the Medical Society, the Hospital Association and the Nursing Homes Association and if his bill passes civil trials in North Carolina will never be the same.
For instance: A jury may still hear a medical malpractice case but it will not be told about Senator Rucho’s cap on how much restitution it can award for disfigurement, loss of limb and so on. Instead, the jury will hear the evidence, reach its verdict, determine damages, award whatever it decides is fair restitution and go home.
But, then, something odd happens.
If the jury awards a victim (say, for the loss of his legs) over $250,000, Senator Rucho reaches out of the State Senate and into the jury box and changes its verdict and the judge cuts the restitution to $250,000.
Now Bob Rucho will tell you he’s for less government and less government power but his bill extends the power of State Senators and Representatives into a place (the jury box) where common sense and the North Carolina Constitution says politicians ought not to be meddling.
In the end it boils down to this: Who do we trust to decide verdicts? Juries who hear evidence or politicians like Senator Rucho who take contributions from the Medical Society?