Tort reform is a buzzphrase that comes and goes, but nearly always gets tied to things like The Great McDonalds Hot Coffee Incident or the rising cost of medical malpractice insurance for doctors. Many blogs, Tort Deform and Overlawyered prominently among them, devote copious space to arguing tort reform.
A tort, by the way, is a wrong for which the law provides a civil remedy. If you punch someone, for example, you have committed the tort of battery. Of course, the tort reform movement is more concerned with consumer issues like products liability, medical malpractice, and personal injury. So why should you care? Because as a consumer, tort reform doesn’t help you, and probably hurts you.
On the one hand, say the tort reformers, ridiculous jury verdicts are driving the cost of doing business sky-high. On the other hand, trial lawyers parade a host of sympathetic plaintiffs past the media circus. Which are right?
Good cases and bad cases settle. This is more or less a given. If a doctor left a sponge in a patient’s chest, chances are good that doctor’s malpractice carrier will settle the related lawsuit rather than risk the bad publicity and financial risk of a trial. The same goes for cases where the plaintiff’s claim is weak. If a driver probably should have avoided the accident he ended up in, she will probably settle for a small amount of money rather than risk a jury verdict of zero.
In the middle are all those cases that cost all that time and money and rack up big jury verdicts. Or not, if the plaintiff loses. Those are the cases the tort reformers are worried about. They want to do things like put roadblocks in front of medical malpractice plaintiffs so that they cannot bring their claim unless it is approved by a “health court” first. Of course, once again, bad cases will be weeded out for a minimal cost, good cases will go forward, and cases where there is a real question will probably fall somewhere in the middle. And in the end, it looks a lot like arbitration, which is advantageous to frequent users, not consumers.
But courts are built to handle close cases. It is what they do best, and what they were created to do. Juries are well-suited to determine how much pain and suffering, emotional distress, or financial loss a person has suffered. Jurors are not experts, but they usually have expert help in arriving at their verdicts. Someone has to decide these cases, and tort reformers want it to be a “panel of experts,” which sounds all well and good until you realize who that panel’s repeat customers will be–the same people repeatedly accused of leaving sponges in patients’ chests. Who will they tend to side with? I’m guessing the ones who pay their bills.
Tort reformers also love to throw around damage caps. In other words, capping the amount of money a plaintiff can receive for his or her injury. The idea is that this will allow insurers to better predict their costs of insurance, and that insurance rates will go down as a result. However, whether or not this actually happens is dubious, and states that have tried it have not experienced the expected drop in insurance rates. Nor have doctors flocked to states with tort reform measures in place.
Plus, there is the emotional response: how can you limit the recovery of a consumer scarred for life by an accident, a Ford Pinto
, or a doctor’s error? Should they have to suffer financially as well as physically for the rest of their life?
When you get right down to it, tort reform is the legal system’s equivalent to an automated customer service system. The choices you have are limited, and the help you can get is chosen for ahead of time–and rarely appropriate.
If you want to read more about tort reform, read the stormy Wikipedia article, the neutrality and accuracy of which is hotly debated at present.
Small print: In the interest of full disclosure, I am a plaintiffs’ consumer lawyer, so I am definitely, admittedly, and unashamedly biased. — SAM GLOVER