Medical Malpractice as Workers' Comp: Overcoming State Constitutional Barriers to Tort Reform

• Publication year: 2018

Medical Malpractice as Workers' Comp: Overcoming State Constitutional Barriers to Tort Reform

Alexander Volokh

Emory University School of Law

MEDICAL MALPRACTICE AS WORKERS' COMP: OVERCOMING STATE CONSTITUTIONAL BARRIERS TO TORT REFORM

Alexander Volokh^*

Abstract

This Article discusses the intersection of torts, administrative law, and constitutional law—a surprisingly understudied area, given its importance for modern-day tort reform efforts.

In several states, based on perceptions of a medical malpractice liability and insurance crisis, reformers have sought to abolish tort liability for medical malpractice—replacing it with an administrative compensation system not based on negligence and roughly similar to workers' compensation.

Tort reformers have, in the past, been hindered by state courts that have struck down damages caps and similar reforms on state constitutional theories. Some of the main theories have been state constitutional jury trial rights, access-to-courts rights, and due process/equal protection.

Surprisingly, it turns out that workers'-comp-like administrative systems, though more radical than damages caps and similar reforms, seem to have a better chance of being held constitutional—in part because of their similarities with workers' comp, which also abolished certain tort actions and replaced them with a non-negligence-based administrative system, and which has been universally held to be constitutional.

This Article analyzes the constitutionality of this sort of administrative compensation system under the Florida, Alabama, and Georgia constitutions, focusing on jury trial rights, access-to-courts rights, and due process/equal protection.

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Introduction..............................................................................................977

I. Med-Mal Reform: Past and Future............................................984

A. The Movements for Tort Reform and Med-Mal Reform ............ 984
B. The State-Con-Law Rebuff......................................................... 985
C. What Do Patient Compensation Systems Look Like?................ 987

II. The Jury Trial Right......................................................................989

A. The Federal Seventh Amendment Right...................................... 991
B. The Florida Jury Trial Right ..................................................... 993
C. The Alabama Jury Trial Right................................................... 995
D. The Georgia Jury Trial Right .................................................... 997
E. Doesn't the Greater Power Include the Lesser? ..................... 1002

III. Access-to-Courts and Right-to-a-Remedy Provisions.........1004

A. The Florida Access-to-Courts Clause ..................................... 1005

1. The Kluger Test ................................................................. 1005
2. Kluger Prong One: Reasonable Alternative...................... 1007

a. Workers' Comp Fares Very Well Under Kluger Prong One ............................................................................. 1007
b. Other Alternative Schemes Are Also Treated Charitably Under Prong One ....................................................... 1010

3. Kluger Prong Two: Public Necessity ................................ 1012

B. Alabama's Right to a Remedy and Access to Courts............... 1016

1. The Early Cases ................................................................. 1017
2. The Turn to Stricter Analysis ............................................. 1018
3. The Move Back to Confusion ............................................. 1022

IV. Due Process and Equal Protection..........................................1026

A. The Federal Clauses ................................................................ 1026
B. Georgia Due Process and Equal Protection ........................... 1030
C. Florida Due Process and Equal Protection ............................ 1031
D. Alabama Due Process and Equal Protection .......................... 1037

Conclusion................................................................................................1041

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Introduction

A surprising fact lives at the intersection of torts, administrative law, and constitutional law. For years, many states have been striking down tort reform measures on various state constitutional grounds, relying on rights that are unknown to the Federal Constitution (like "access to justice" or "right to a remedy"), rights that have been interpreted far beyond their federal counterparts (like jury trial rights), or old-fashioned rights that state supreme courts merely apply more rigorously than one might expect (like due process or equal protection rights). In fact, it wouldn't be unfair to think of state constitutional law as the enemy of the modern tort reform movement.

In recent years, tort reformers have introduced a new sort of bill in various state legislatures: one that would entirely abolish tort liability for medical malpractice (med mal) injuries and replace it with an administrative compensation system that looks more or less like the workers' compensation system.

This proposal is far more radical than the sorts of proposals, such as damages caps or statutes of limitations, that have routinely been struck down. And yet—at least in the states whose constitutional law I examine in this Article—it is probably entirely constitutional.

The moral is that torts, state administrative law, and state constitutional law intersect in interesting and unexpected ways. In particular, the story of administrative med-mal compensation systems shows why we should all know more state constitutional law.

* * *

First, torts. Medical malpractice has long been the subject of critical inquiry.¹ Critics have argued that lay juries, unqualified to opine on the complicated question of whether doctors have been negligent—and moved by hindsight bias and venal expert witnesses—hand down excessively large damages verdicts. The fear of being found negligent drives the practice of "defensive medicine," whereby doctors order useless and costly tests to insulate themselves from being second-guessed at trial. All this, in turn, drives

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increases in medical malpractice insurance premiums and reduces the availability of affordable medical care.²

Not all plaintiffs benefit from these large verdicts, though: the expense of litigation means that many deserving plaintiffs with moderate claims can't find legal representation and thus go uncompensated; and even those who do get compensation have to wait years.³

* * *

Defenders of the med-mal system have disputed these critiques, and the empirical evidence is complicated.⁴ Still, these concerns—and broader concerns related to tort law and civil liability more generally—have driven the tort reform movement for the last forty years.⁵ The tort reform movement has featured damages caps (whether on noneconomic or punitive damages), alterations in the standard of proof for applying punitive damages (with several states adopting a "clear and convincing evidence" standard), provisions diverting all or a portion of punitive damages to the government, and so on.⁶ Some of these provisions have been targeted to medical malpractice; others haven't.

But one development is fairly new: the complete replacement of medical malpractice tort liability with an administrative compensation system. (Or perhaps everything old is new again—we've already seen something like this in the 1910s, when most states replaced most employer-employee litigation

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over workplace injuries with administrative workers' compensation systems.)⁷ A typical example of such an administrative compensation system is the one proposed in S.B. 141, the Patient Injury Act, introduced in 2013 in the Georgia Senate but never enacted;⁸ similar bills have been introduced (but also never enacted) in Florida and Alabama.⁹

The arguments against such schemes are mostly policy-based. For instance, if one believes that the tort crisis or med-mal crisis is basically illusory, then such an administrative compensation system is a solution in search of a problem.¹⁰ (I myself express no position on the merits of these schemes in this Article.) But one particular set of arguments relates to the constitutionality of the system.¹¹

* * *

This is how the first two pieces of the story—torts and administrative law—get us to the third piece: constitutional law.

Constitutional law has often been the enemy of tort reform: damages caps and similar measures have been struck down on constitutional grounds in many states.¹² But the roadblock to tort reform has not generally been the Federal Constitution, but rather state constitutions, which contain provisions that either

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are entirely unknown to the Federal Constitution or have been interpreted by state supreme courts very differently from their federal counterparts.¹³

To give just a couple of recent examples: In Atlanta Oculoplastic Surgery, P.C. v. Nestlehutt, the Supreme Court of Georgia struck down a statute capping noneconomic damages under the Georgia Constitution's jury trial clause.¹⁴ And in Estate of McCall v. United States, the Florida Supreme Court struck down a per-incident cap on noneconomic damages in a wrongful death case arising from medical malpractice, holding that it was "arbitrary and unrelated to a true state interest" and therefore violated the Florida Constitution's Equal Protection Clause.¹⁵

State constitutional law is an understudied area. The reasons are understandable: We have fifty states but only one federal government. Researching California con law might be about as easy as researching federal constitutional law, but for one's analysis to be interesting outside of a single state, one will have to engage in comparative analysis, which is more time-consuming and sounds (is?) more tedious than just understanding one national jurisdiction. In part because...