by: Edward B. Mulligan V, Attorney
Do you know what Tort Reform is? Not quite sure? Well, you’re not alone; most Americans don’t. However, before you decide who to vote for in the November elections, it is critical that you be well-informed on this important issue. Don’t worry, I’m here to help.
What is a Tort?
The best place to start is by defining the word “tort.” And no, it’s not a dessert–that’s a torte with an “e.” A tort is a civil wrong arising from an act or failure to act for which an action for personal injury or property damages may be brought in civil court. Where a defendant is found to be at fault by a judge or jury, a tort requires that defendant to compensate the victim(s) for any harm they have suffered. Typical harms, or “damages” as they are also referred often include past and future medical expenses, past and future lost income, payment for pain, suffering and disfigurement (i.e. loss of a body part), and in some states and situations, punitive damages. As you may have guessed, the goal of the civil justice system is to restore the victim to his or her pre-injury position. At the same time, the civil justice system serves the critical role of deterring individuals and corporations from engaging in risky behavior that is more likely to harm others.
What is Tort Reform?
Tort reform refers to the recent political movement to enact state-by-state legislation which seeks to reduce the number of personal injury and medical malpractice cases and the resulting damages. Tort reform legislation comes in a variety of flavors.
Limiting Access to the Courts–Some tort reform laws are aimed at significantly shortening the window of time that a personal injury victim has to file a lawsuit. Failure to file a lawsuit by these shorter deadlines will result in an outright dismissal, regardless of whether that claim has merit, leaving the victim to bear all the costs associated with the injury. These laws often do not account for injuries that do not manifest themselves for some time, often years, after the original injury or exposure. Latent injuries, as they are known, are often the most devastating both from a health and medical-cost standpoint. One example is mesothelioma, or cancer, which can result from long-term exposure to asbestos. Mesothelioma typically does not manifest itself for a period of 12 to 20 years. So under some state laws, a victim’s lawsuit may be barred even before that victim knows about the injury.
Limiting Financial Damage Awards Regardless of the Injury–many states also now have laws which cap the amount of damages (either by certain categories of damages or by total damages) that can be awarded in personal injury and medical malpractice lawsuits. Typically, these blanket caps do not take into account the severity of the injury or the extent of the medical expenses or other costs. Caps on damages pose significant challenges for personal injury victims who have sustained permanent, life-altering injuries as they may require extensive future medical care and may no longer be able to work.
Other laws may seek to limit a plaintiff’s access to the justice system by allowing, and in some cases requiring arbitration and mediation as opposed to a trial by jury or requiring that a claim survive a pre-litigation medical review panel in medical malpractice cases before a lawsuit can be filed.
The Argument for and Against Tort Reform
Proponents of tort reform argue that the current justice system is insufficient to combat “frivolous lawsuits” by individuals who are just looking to cash in. They also believe that damages awards are often excessive and have a negative impact on businesses and industries. For example, they argue that lawsuits increase the costs associated with medical products and health care.
Opponents of tort reform claim that the current civil justice system is already equipped with mechanisms for disposing of frivolous lawsuits and that even if it was not, tort reform laws have a more significant impact on lawsuits with merit than those without merit. Opponents also argue that damage awards are necessary to pay for medical bills, future expenses, and any loss of income resulting from the injuries that they have sustained. The risk of lawsuits and large damages awards also provides incentives to manufacturers and doctors to ensure that medical products and procedures are safe. More specifically, caps on damages, opponents argue, take the decision making process away from the jury, fail to account the severity of a particular plaintiff’s injury and resulting costs, and unjustly shift the burden of risky behavior onto innocent injury victims as well as taxpayers (via Medicare or Medicaid) who are left to foot medical bills.
The Myth about Frivolous Lawsuits
One of the major driving forces of the tort reform movement has been the public’s misperception that our civil justice system is flooded with “frivolous lawsuits” filed by those who are merely seeking a free ride. By definition, a “frivolous lawsuit” is one filed by a party or attorney who is aware they are without merit, either because it lacks supporting legal argument or a factual basis for the claims.
Interestingly enough, many believe that tort reform is necessary to combat such lawsuits. However, the current civil justice system already has numerous mechanisms for disposing of frivolous lawsuits. For example, Rule 11 of the Federal Rules of Civil Procedure requires that an attorney certify that the lawsuit has a legal and factual basis. If a party violates this rule, the court can sanction the offending party, the party’s attorney, or both. Similarly, a defendant is typically afforded not one, but two mechanisms–a motion to dismiss and a motion for summary judgment–to dispose of frivolous lawsuits before trial. Because a judge is required to evaluate a plaintiff’s case when deciding these motions, virtually all “frivolous” lawsuits are snuffed out before trial. And the very few that manage to slip through the cracks must still withstand the hallmark of our justice system–a jury.
Second, in application, laws which fall under the tort reform umbrella usually only pose a serious threat to lawsuits that actually have merit. For example, shorter statutes of limitation prohibit the filing of all claims, frivolous or otherwise. However, because frivolous lawsuits are typically disposed of before trial anyway, the real impact of shorter statutes of limitation is felt by those with legitimate claims. Similarly, caps on damages are only applied after a jury has found that the plaintiff’s lawsuit is meritorious and is entitled to a money damages award to adequately compensate the plaintiff for injury.
Want to Learn More about Tort Reform?
I recommend that you watch the documentary “Hot Coffee,” which chronicles the tort reform movement and corrects many of the public misperceptions about the notorious McDonald’s hot coffee case of Liebeck vs. McDonalds. This documentary not only explains the case in further detail, it also provides additional stories of how tort reform legislation has negatively impacted personal injury victims.
Tort Reform – It Has Nothing to Do with Dessert.
by: Edward B. Mulligan V, Attorney