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Talk of “Tort Reform” in The Air?

It seems that in every political election, one candidate talks about the need for “Tort Reform.” Sometimes, it is framed as a “us” against “them” issue. Others seek to blame the lawyers, blame the insurance companies, blame careless doctors or blame greedy and irresponsible corporations. However, the concept itself is rarely and never fully, explained.

This leaves us with the question: What is this talk of “Tort Reform” all about?

The best way to explain the concept is to break the phrase down into its respective parts.

What is a tort? Formally, a tort is a civil wrong which can be redressed by awarding damages. Torts are non-criminal, civil cases where an act, intentionally or otherwise caused an injury. This injury can be physical, mental and/or monetary. When this tort is committed, the injured party has the right to sue the wrongdoer for damages. Examples include medical malpractice, assault, negligence, workers compensation, and product liability.

Since torts cover varying types of civil actions, tort reform can be focused on one particular area of wrongdoing, or across-the-board attempts to limit the ability of people who are harmed to obtain full redress in the Courts. The tools that advocates of tort reform use include procedural limits on the ability to file claims and caps (or limits) on the damages that a plaintiff can recover in court.

For example, Florida places a cap on the amount of non-economic damages claimants may recover. Non-economic damages include things like pain & suffering, mental anguish, and, in general, anything you do not have a fixed bill for.

“If the negligence resulted in a permanent vegetative state or death, the total non-economic damages recoverable from all practitioners, regardless of the number of claimants, under this paragraph shall not exceed $1 million.”

While this cap exists, the Florida Supreme Court in March 2014 struck down this legislative cap in wrongful death cases, even though they had previously held it did not violate the Equal Protection Clause of the United States Constitution. Justice Pariente stated there was no “rational relationship” between the cap and any benefit to physicians or patients, and ultimately, “only the insurance companies benefit in the form of an increase in profits.”

Not all states have caps on damages in medical malpractice cases. States that do not are Alabama, Arizona, Arkansas, Connecticut, Delaware, District of Columbia, Iowa, Kentucky, Minnesota, New Hampshire, New York, Pennsylvania (however, punitive damages are capped), Rhode Island, Vermont, Washington, and Wyoming.

Proponents of tort reform claim that through tort reform, frivolous lawsuits will be reduced and consequently lead to reduction in insurance and healthcare costs. They claim that medical malpractice lawsuits are making it difficult for doctors to make a good living.

Opponents of tort reform claim that the “fear tactics” of the tort reform movement are not supported by the facts. In 2012, the Institute of Medicine of the National Academies reported that one-third of hospitalized patients are harmed during their stay. In the Institute’s landmark study on hospital patient safety, To Err is Human found that nationwide up to 98,000 patients die from medical errors per year.

According to the National Association of Insurance Commissioners, the total amount spent defending medical malpractice claims and compensating victims is $7.1 billion annually – just 0.3 percent of America’s $2.2 trillion in overall healthcare spending. Meanwhile, the real driver of healthcare costs are preventable medical errors, which are responsible for an additional – and unnecessary – cost of $29 billion annually. So, is this a battle of facts or just a powerplay by the medical community to reduce their financial responsibility for the malpractice caused by careless doctors? It is clear that this is a complicated issue; otherwise it would have been resolved long ago. Ultimately, your viewpoint on tort reform is likely to be shaped by whether or not you and/or someone you know have been affected by a serious medical error which resulted in a life altering condition or death. It seems that many people are for tort reform – until they are the victim of negligence.

It is important to stay educated and aware of “tort reform”, so you can better understand the ways it may affect you now and in the future.

At Jacoby & Meyers, we hope you never find yourself the victim of medical negligence, a car accident or any other preventable injury. However, if you are the victim of such negligence, please contact an experienced personal injury attorney affiliated with Jacoby & Meyers for a free case evaluation.

Alexandra Bhatti, student intern Jacoby & Meyers.