The Enid News and Eagle, Enid, OK

April 22, 2007

State tort reform bill has its defenders, detractors

By Robert Barron Staff Writer

The Oklahoma Legislature approved a new tort reform bill this week, which now requires Gov. Brad Henry’s signature to become law.

Garfield County Economic Development Alliance is supporting the bill and all three Enid- area legislators voted for it. Senate Bill 507 contains major provisions, including a $300,000 cap on non-economic damages in lawsuits unless gross negligence or malice is proven, eliminates joint and several liability, making every defendant responsible for only their portion of fault and places limits on product liability actions. It also protects restaurants and food manufacturers from lawsuits claiming they are responsible for the eating habits of their patrons, and provides teachers and school administrators immunity from liability when reasonable discipline is used .

The bill sets a statute of repose of eight years from the act of omission that gives rise to a claim, for actions against any hospital, physician or health care provider.

It further defines what frivolous means and provides for easier dismissal of such lawsuits and clarifies the definition of volunteer for clearer immunity from liability.

State Rep. John Enns, R-Waukomis, voted for the legislation, saying it is necessary to get some constraints on frivolous lawsuits. It also puts a cap of $300,000, not counting wages or medical expenses — only pain and suffering.

“Whether the $300,000 is the right amount, I don’t know, but it needs capped somewhere,” Enns said.

State Sen. Patrick Anderson also voted for the bill. Anderson, an Enid Republican, said there are some issues that need to be addressed in the tort system and he thought the bill had more positives than negatives.

“It did take some positive steps towards addressing some of the challenges to business, physicians and hospitals facing our community,” he said.

Those challenges are the skyrocketing cost of health care, which he said is the largest cost to state agencies and is a result of what is going on in the tort system. Because of the threat of lawsuits, physicians are practicing defensive medicine and requiring tests they normally would not prescribe, he said.

“That only raises the cost of health insurance for everyone. In rural Oklahoma we face the real issue about losing physicians in our part of the world. We’ve seen in our community physicians retiring or moving to larger metropolitan areas. We need to stop that outflow of physicians,” Anderson said.

Enid attorney Brad Gungoll, an outspoken opponent of tort reform, disagrees.

“It’s a terrible legislation. It’s oppressive to the elderly, toward women and children. It’s a perfect example of party politics instead of doing the right thing,” he said.

There are many provisions of the bill that are extremely bad, he said, with caps on non-economic damages and pain and suffering. Gungoll said that sounds good at the coffee shop, but if it happens to your family and all you get for losing your quality of life is $300,000 it won’t be enough. If someone dies or can’t drive themselves anymore, or if someone has to take them to the bathroom, it isn’t enough.

“The Legislature decided they are smarter than Thomas Jeffer-son and should have a limit on what can be awarded,” he said.

Gungoll questions the effect the legislation will have on people who do not have an active income — elderly, spouses who stay at home and children. He questions how their income is determined and how they can be made whole.

“A child who is never able to swim, never goes to camp, or have a normal life as an adult is supposed to be made whole. Those injuries are devastating to families,” he said.

Gungoll said he has been a Republican all his life and never has been as disappointed in his party.