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Understanding tort reform and its potential consequences, Part 1

In any area of public concern, lobbyists, politicians, big business, and pundits alike, often turn to catchphrases that serve to undermine open and full discussion over a specific topic. As our nation is struggling to find ways to address the rising cost of healthcare there are some who suggest that tort reform is necessary to protect public health.

Tort reform is not a new concept. The phrase itself, however, suggests that a problem exists that needs correcting. The slogan, tort reform, was devised in order to entice individuals to waive an indispensible constitutional right.

What Is The Function Of Tort Law?

The founders of our nation believed that the tort system is so fundamental to a just society, that they included the right to a jury in civil injury cases in the Seventh Amendment, a topic we previously covered in a two part series. Personal injury law and medical malpractice cases provide more than just a process for victims to obtain compensation for the harm that they have suffered. These issues fall under the legal category of tort law that serves to expose dangerous products that otherwise may continue to harm a large number of people and serve as a deterrent to wrongful conduct and practices that cause injury.

What Is Tort Reform?

As a slogan, "tort reform" works to sugarcoat or glamorize the issue. The phrase carries a forward-looking connotation of fixing a problem. Unfortunately, lobbyists and big business have relied on urban-legend, misleading facts and appeals to economic fears that lack foundation to establish tort reform as a subject for the public agenda.

The moniker itself diverts attention from the real-world problem that medical mistakes are a public health concern. Efforts to promote reform necessarily include medical-negligence denial. To promote economic change to benefit big business and protect wrongdoers who have caused harm, lobbyists have created a program of propaganda to demonize the judicial system.

When the adverse effects of smoking gained national attention, Big Tobacco was highly involved in secretly lobbying policymakers to place limits on product liability cases under the tort reform umbrella. Today, in the healthcare arena insurance companies seek to protect their own bottom lines by diverting your attention away from speaking about the elephant in the room: Medical negligence.

Last year, researchers at Johns Hopkins Medicine determined that medical mistakes should be listed as the third leading cause of death in the United States, accounting for more than 250,000 fatalities. Many argue that it is not the litigation that is problematic, but the medical negligence itself that causes the harm in the first place.

In the next post, we will discuss the most common types of tort reform in more detail, including:

  • Caps on noneconomic damages
  • Limits or restrictions on punitive damages
  • Modifications to joint and several liability rules
  • Procedural changes aimed at closing the courthouse door to victims of negligence

Our discussion will include the various forms of reform, as well as the pros and cons of each different theory of tort law change.

Sources: PBS Newshour, "Q&A: Ralph Nader on civil litigation, tort reform and his new museum," Phil Hirschkorn, Dec. 19. 2015; Loyola of Loa Angeles Law Review, "100 Years of Conflict: The Past and Future of Tort Retrenchment, "John T. Nockleby, Jan. 1, 2005; NPR, "Medical Errors Are No. 3 Cause Of U.S Deaths, Researchers Say," Marshall Allen and Olga Pierce, May 3, 2016

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