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Understanding tort reform and its potential consequences, Part 3

Understanding tort reform and its potential consequences, Part 3

We have discussed the issue of tort reform in a variety of ways. Unfortunately tort reform has become a recurring topic that makes it into the public debate without any significant premise for its need. Concerns over health care costs, the potential for so-called frivolous lawsuits and a fear of a possible runaway jury are frequently the pegs that reformers rely on to argue to limit the constitutional rights of injury victims, while immunizing negligent actors from liability for the catastrophic harms they cause.

Tort law and tort reform: What is the answer?

In January and March, we discussed how strongly the founders of our country valued the importance access to the courts to resolve controversies. The framers believed that the jury system is vital to freedom and self-governance. The Seventh Amendment expressly guarantees the right to a jury to decide issues of fact in injury cases. Tort reform ultimately seeks to deny victims of negligence from having members of the community decide facts on an individual basis. It seeks to have detached lawmakers decide how much a life is worth in an arbitrary fashion under the guise of protecting Americans.

Fears Over The Runaway Jury

Tort reformers frequently point to anecdotal stories about jury awards over issues such as burn injuries from hot coffee to create an emotional response, founded on misdirection. The stories invariably stop short of explaining the full facts and actual outcomes. Runaway verdicts are rare, as members of juries are well-known for their sense of duty, and justice, in our legal system.

Moreover, the legal system provides mechanisms to control jury verdicts that are unsupported by the evidence, while maintaining the integrity of the Seventh Amendment. Defendants may seek a new trial under rule 59 of the Rules of Civil Procedure. Often, a motion for a new trial may include a request to reduce the amount of a jury award if the evidence does not support the findings or it appears the jury verdict was based upon prejudice that shocks the conscious.

The authority of the court is only exercised with due discretion for the constitutional guarantee of the right to have a jury decide the facts. If the plaintiff does not agree with what is called a remittitur - a reduced jury award - the court may grant a new trial if the jury verdict is outlandish. Tort reformers often ignore this aspect of their stories of outrageous awards and runaways juries. Moreover, states that rely on arbitrary damage caps on jury verdicts use the remittitur system to reduce damages to the statutory maximum - without regard for the jury's findings or the judge's review of the individual facts of each case.

The Case Against Frivolous Claims

People with medical conditions can face grim circumstances. Adverse medical outcomes occur. We all understand our own mortality. Yet, tort reformers may suggest that plaintiff-friendly tort lawsuit rules will increase frivolous claims. Court rules, the Rules of Professional Conduct and the high costs involved with filing a medical malpractice claim provide tremendous protection against frivolous lawsuits. Judges and juries are not likely to allow a claim without merit to get very far.

Attorneys typically take on tort claims on a contingency basis and are unlikely to spend great sums of their own money chasing frivolous claims. Moreover, the sanctions that professional responsibility boards and the courts have at their disposal to control meritless claims work. Many states require a plaintiff to file a certification of merit to gain access to the courthouse door in a medical malpractice lawsuit. For instance, the Minnesota Medical Malpractice statute requires the plaintiff to file a section 145.682 certification of expert review to show one or more medical experts have reviewed the facts and have formed the opinion that there is merit to the claim of medical error. The affidavit must be signed by each expert expected to testify at trial

The Minnesota Model Shows Plaintiff-Friendly Tort Law Does Not Adversely Impact Medical Care

Minnesota is regularly recognized for its exceptional health care. Managed Healthcare executive ranks Minnesota as the best state in terms of its healthcare system. Claims that arbitrary damage caps are necessary to keep healthcare costs low are strongly refuted under the Minnesota model. Life expectancy is high, medical malpractice and healthcare costs or low, and victims still have access to the courts to obtain meaningful justice when a medical mistake causes serious injury or death.

As we have discussed in previous posts, many national studies have been conducted that also lead to the same conclusion - tort reform does little to control costs, while protecting negligent actors from liability. Minnesota provides its residents with a system that allows exceptional access to healthcare, as well as a legal system to address medical mistakes.

Sources: Managed Healthcare Executive, "Top 10 states with the best healthcare," Tracey Walker, Oct. 5, 2016; American Bar Association, "Challenging an excessive jury award in post-trial proceedings," Kimberly A. Mello and Jonathan S. Tannen, Fall 2013 Newsletter; Bench & Bar of Minnesota, "Frivolous Litigation," Martin Cole, July 16, 2013; Minnesota Statute 145.682; Rule 59, MN R. Civ. Pro.

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