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Understanding tort reform and its potential consequences, Part 2

Researchers generally recognize three waves of tort reform. The most recent wave occurred between 2002 and 2005. Nine states across the country enacted laws to cap damages in medical malpractice cases. Then, as now, proponents of plans to immunize medical professionals from being held liable for their negligence have claimed that tort reform is necessary to promote good health.

The arguments take different forms. Some so-called tort-reformers have argued that jury awards in medical malpractice cases drive up the costs of health care. Other say that medical malpractice insurance costs reduce access to medical care as doctors flee rural areas and smaller communities due to their insurance rates.

In the last post, we discussed the history of tort reform and explained that in many ways, the concept is based upon exaggerated and false information - often based on urban legends that distort the true nature of how tort law and jury awards actually function. Tort reformers are well aware that the Constitution specifically guarantees the right to have a jury decide the facts, and damages, in a civil case involving injury. Yet, they have developed a system of propaganda to sway public debate toward taking the Seventh Amendment right away, or seriously diminish its value.

The phrase tort reform does not specifically identify any single process, but a concept to reduce costs for big business and the insurance companies. Tort reform can take different forms. Proposals may include one or more of a wide range of strategies to immunize negligent actors from liability for their mistakes. A nonexhaustive list of common tactics to limit your constitutional rights includes:

Caps On Noneconomic Damages

Damage caps are the most common type of tort reform. Some states have imposed a limit as low as $250,000 on all noneconomic damages in medical malpractice cases. Proponents suggest that a quarter-million dollars is adequate, no matter what circumstances are involved. However, compensation for a lifetime of hopes and dreams destroyed, a lifetime of pain and suffering and the inability to improve quality of life may be better determined by a jury on the facts of a single case than by lawmakers in their sterile office as a blanket rule for all.

Limits On Punitive Damages

The law has long recognized that victims of serious injury should be able to receive punitive damages for injuries caused by the gross negligence or willful misconduct of another. The idea is that someone who acts so egregiously should not be able to get away with the wrongful act. Punitive damages act as a deterrent. Moreover, a person who acts so irresponsibly and causes someone else harm should not be immunized for their wrongful acts.

Modifications To Joint And Several Liability Rules

When more than one wrongdoer is responsible for injuries the common law held that each tortfeasor could be held responsible to pay for all parties. The idea is that the victim should be made whole, and if one or more wrongdoers are responsible for harm, they can fight it out amongst themselves. Many states have modified the rules or limited the amount of money one wrongdoer can be held responsible for, at the expense of the victim.

Procedural Changes To Filing A Claim In Court

The ability to file a lawsuit can be affected through changes in the law that limits access to courts in the first place. Many states have introduced procedural rules that make it more difficult to get in the door at the courthouse. The idea is to decrease the number of so-called frivolous lawsuits. Judges and attorney ethics boards have a great deal of power to impose sanctions for frivolous lawsuits. Moreover, the upfront costs of pursuing a lawsuit are a strong deterrent against lawsuits that have no basis.

What Do Reform Measures Protect - And Should Victims Pay The Price?

Consider a situation where a 16-year-old student who earns straight A's in school, participates in extra-curricular activities and holds a part-time job. The student has a promising future, with all the hopes and dreams of an All-American kid. Then, a medical mistake takes his or her future away. The teen is left permanently disabled and likely unable to work for the rest of his or her life.

The average life expectancy for Americans is 78.8 years, according to the National Center for Health Statistics. A $250,000 verdict in this situation amounts to roughly $90 per week. If you are a parent, would a portion of $90 be sufficient for you to give up the memory of the day your first child was born. Would a few dollars make you whole for what you missed out on that day - and each day after?

Caps on damages also apply in many states to immunize wrongdoers and shield them from civil punishment. Imagine you need medical care, but are unaware that your doctor has a chemical dependency problem. You are sedated when the impaired doctor enters the delivery room or operating room. Should that doctor be protected from liability if his or her medical care caused you lifelong harm?

In the next post, we will continue our discussion of tort reform. Understand, modifications to the law are common - both through case law and legislative action. Improving the law is a good thing and some progress can help in defining rights and responsibilities. But change - or reform - aimed solely at protecting big business interests and profits at the expense of victims may not be the best answer.

Sources: Northwestern University, "Damage caps and defensive medicine, revisited," by Myungho Paik, Bernard Black, David A. Hyman, last accessed May 1, 2017; Congressional Budget Office, "The Effects of Tort Reform: Evidence from the States," June 2004; Loyola Marymount University and Loyola Law School, "100 Years of Conflict: The Past and Future of Tort Retrenchment," by John T. Nockleby and Shannon Curreri, Jan. 1, 2005

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