Unpacking Tort Reform: Why the Hard Cap Failed

Thursday, June 18, 2020 3:17 PM | Sydney Maras (Administrator)

Recent History

In 2017, IMS pursued a package of medical liability reforms, which included strengthened expert witness standards, a Certificate of Merit requirement in all cases, expanded CANDOR early disclosure protections, and a hard cap on noneconomic damages. Republicans controlled both chambers of the legislature and the Governor’s Office for the first time in nearly 30 years so traditional tort reform was politically viable. The bill easily cleared the Senate and then it went to the Iowa House where Republicans held a 57-seat majority. After months of work and tireless efforts of House leadership, we were unable to persuade a handful of holdout members to support the hard cap. The bill passed, but the hard cap became a soft cap, which only protects against frivolous lawsuits.

In the three years that followed, trial attorneys employed a host of new techniques to exploit Iowa’s soft cap – playing to juries’ emotions and driving up judgements to force higher settlements from practices and providers. Unfortunately, these tactics work. In just five cases, juries awarded a record $85 million in damages, with 75% of these awards coming in the form of noneconomic damage awards.

2020 Session

IMS entered the session committed to stemming the tide of high-dollar awards. Armed with the facts of these recent cases and supported by additional contract staff working exclusively on tort reform efforts, we got to work. IMS assembled a coalition of more than 30 organizations, represented by more than 50 lobbyists – the largest, most extensive advocacy coalition in our organization’s history. Our coalition divided the House Republican caucus to ensure a rotating cast of lobbyists was speaking with individual members each week to keep the pressure up for passage of the hard cap. Outside the building, our staff crisscrossed the state to educate local physicians on the issue and get them signed up to help with the fight. Our Grassroots Coordinator lined up local physicians in targeted House districts to engage those key House votes in a discussion of the importance of a hard cap to their local community. House Republicans now hold a 53-seat majority so the margin for error was razor thin.

After the Senate passed the hard cap 30-20, with two Republicans joining the Democrats to vote against the bill, our final hurdle to passage was the House. When the original House bill failed to make it out of the Judiciary Committee, we worked with House Leadership to get the Senate bill assigned to a more favorable committee – House Commerce. Then COVID-19 forced an eleven-week suspension of session. During this time, we continued conversations with legislators and near the end of the suspension we asked local physicians to again reach out to their local House targets to confirm whether they continued to continued to have reservations about the hard cap. Local physicians confirmed what House leadership later would – at least five House Republicans were still firmly opposed to a hard cap and a handful of others refused to take a position on the issue. Shortly after session resumed, House Leadership informed our coalition that they did not have the votes to pass a hard cap and the language would be stripped from the legislation.

Frequently Asked Questions About Tort Reform

Is tort reform dead?

A hard cap will not become law this year, but the effort is not dead. With House Republicans only holding a narrow margin, a handful of them can derail tort reform efforts. The only viable path to passage of a hard cap now is to elect more people who support tort reform to the Iowa House to overcome the handful of House Republicans who oppose this reform. This will take financial resources. IMPAC has relaunched the $100,000 Tort Reform Challenge to raise money for political contributions to pro-tort reform legislative candidates. 100% of funds raised through this campaign with be used for direct candidate contributions in support of tort reform.

What about passing tort reform with Democratic votes?

Tort reform, and specifically a hard cap on noneconomic damages, has been a highly partisan issue for many years. During the years that Democrats controlled legislative chambers or the Governor’s Office, IMS tried to convince them of the merits of these reforms, which still maintain a means for just compensation of patients with a legitimate injury. The Democrats consistently rejected these arguments and refused to support a hard cap. We saw in 2017 and again this session that when given the chance to vote for a hard cap, not a single Democrat cast their vote for the legislation and in fact some Republicans didn’t even vote for the bill. The most realistic path to passage of a hard cap is with Republican votes.

Was the 2020 effort a waste of time and money given the political dynamics of the House?

Not at all. In 2017, many argued that a hard cap was a solution in search of a problem. Iowa has a long history of reasonable jury awards. IMS felt it best to pursue a hard cap before the liability climate became a problem, but legislators disagreed. Unfortunately, we no longer have that track record of reasonable jury awards. Given the recent spike in high-dollar jury awards and the new tactics being employed by trial attorneys, there is a clear trend threatening medical practice in our state. These new facts necessitated revisiting the issue with legislators and in fact, many who had expressed reservations in 2017 acknowledged this session that it has become a problem. The House Republican caucus also had 14 new members this year who were not there in 2017. This provided an opportunity to educate new legislators and the issue too important to not pursue.

Is IMS still committed to tort reform?

Absolutely. As we’ve mentioned, we know of several additional high-dollar suits that are working their way through the legal system. The trial attorney behind several of the recent high-dollar suits has also begun teaching continuing education courses to share his questionable techniques with his peers. We expect to see more high-dollar judgements and greater pressure to reach a high-dollar settlement to avoid a costlier jury decision. This is unacceptable and unsustainable. IMS is committed to pursuing every avenue to passing a hard cap on noneconomic damages. Right now, that requires a political focus to prepare for the elections this fall.

Does giving money to political campaigns really matter?

Yes. Like it or not, politics impact the practice of medicine and money drives politics. Political campaigns require funds to pay for polling, yard signs, campaign literature, and get out the vote efforts. The Iowa Medical Political Action Committee (IMPAC) provides financial support to political candidates who are supportive of pro-medicine issues. This year, our focus is exclusively on supporting candidates who support a hard cap on noneconomic damages. Here in Iowa, political contributions to candidates must come from individuals. IMPAC bundles individual contributions from Iowa physicians to have a more substantial impact on political campaigns.

The Iowa Medical  Society is a 501(c)6 non-profit organization. 515 E Locust St. Ste. 400 50309
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