"TORT REFORM" IS CODE FOR TAKING AWAY CITIZENS' RIGHTS

My column is usually devoted to straight talk about personal injury claims. I could not resist the temptation, however, to debunk current political rhetoric referring to the need for "tort reform." The phrase "tort reform" was coined by media spin artists to disguise the true meaning of what is being pursued, namely the erosion of citizens' legal rights. The reasons espoused for the alleged need to take away these rights have all been shown to be untrue by readily available statistics and data. Why all the fuss? Because the coalition of big insurance and right wing ideologues have made it a cause du jour, leaving facts and common sense trailing in their wake. Let's set the record straight.

First thing you need to know is what a "tort" is - a civil claim for money damages against someone who has violated a legal duty owed to you. This includes a broad spectrum of claims including auto collisions, premises liability claims, intentional assault and battery and medical malpractice, to name but a few. The rules for recovering money damages under any type of tort theory of recovery are governed by state law which has evolved in the United States during the past two hundred years. Tinkering with these rules should not be taken lightly. The civil justice system gives recompense to victims of injury while operating to discourage harmful conduct and render accountable those who harm others. It is nothing less than a pillar of a free and enlightened society, one which discourages victims from resorting to violence to extract revenge from wrongdoers.

What has changed today that, according to the alarmists, requires immediate legislative action? In reality, nothing. In my view, the crux of the current phenomenon is that insurance companies are trying to lessen their exposure for losses so they can make more profits. After all, insurers are the ones in the business of paying for tort losses (and collecting premiums for their trouble.) They are being joined by their physician clientele who are being squeezed financially by those same insurers (and health care insurers) for reasons having nothing to do with the tort system.

Recent studies show that continued accountability for medical malpractice is vital to maintaining quality medical care. Statistics show that medical errors are widepsread in America. One estimate is that medical errors kill 180,000 Americans each year. That's more than the recent tsunami disaster. Think it's a good idea to restrict medical accountability?

To put some more meat on the bones, let's discuss some of the popular myths.

Myth # 1: "Doctors can't afford malpractice insurance because of runaway claims and are going out of business, leaving the public without medical service providers." While some communities may have lost medical providers, the reason is not a systemic increase in claims. And in the national economy the number of physicians is increasing. Medical malpractice claims have remained fairly constant for years at about 5% of total medical costs. Premiums have indeed increased in many locales, because insurance companies decided to raise them. Why did they do so? Only the insurers know for sure. But studies have concluded that, like many investors, insurers experienced lower market returns in recent years and then sought to recoup those losses through premium hikes. Insurers are also enjoying the perverse outcome of reaping the benefits (i.e. higher premiums) of a problem they caused in what may be a deliberate effort to extract legislative changes to the tort system. Analysts currently indicate that insurer profits are generally at strong levels, so why the rate hikes?

Herein lies the fundamental problem: insurance. This is where governmental scrutiny should be directed. Why did the rate hikes really occur? How about some legislative hearings on this issue? Can government (with no profit incentive) provide more affordable insurance? Undoubtedly. Some states already have such programs consisting of a risk pool for physicians with affordable premiums.

Myth # 2: "Tort reform will make premiums lower so doctors can get coverage." Sounds good in theory, but experience shows this is not true. In California and other states, tort reform has not resulted in lower premiums. Higher insurance profits perhaps. And as any free marketeer can tell you, if current insurers are either doing a lousy job underwriting or charging premiums in excess of the real liability risk, lower cost, more efficient insurers will enter the market to fill the void. I predict this has already happened.

Myth # 3: "Greedy trial lawyers are adding new costs to the system that are making health care costs spiral." Simply not true. No respectable industry analyst makes this argument. Claims run at 5%, and damage caps are predicted to reduce those costs 0.5%. Paltry savings, folks, for so-called "reforms" that take away your rights in many different kinds of situations. Let's talk about some proposals.

Caps on pain and suffering. This type of damage claim is not only for pain and suffering caused by an injury but is also for: loss of enjoyment of life; physiological changes resulting in disability; inability to perform activities once enjoyed; reduced ability or inability to labor and provide for one's self; inability to have intercourse with one's spouse; reduced ability or inability to interact with children and family. The list goes on. Who is the best judge of how devastating an injury has been to someone, a jury or an insurance underwriter with an arbitrary cap? Imagine a child blinded and brain injured due to negligence - is his or her loss worth only $250,000? How about the loss to his parents - some fraction of the $250,000?

What they want to take away, folks, is nothing short of your constitutional right to a jury trial. If you cap damages, you handcuff the jury. It's that simple. And don't expect help from judges striking down bad laws which may be unconstitutional. The prime qualification for being selected as a federal judge these days is a demonstrated unwillingness to challenge the conduct of other branches of government.

Elimination of joint and several liability. This means where two defendants owe the plaintiff a money judgment resulting from a jury trial (a long and arduous road), it can be collected from either or both defendants. Sounds possibly unfair, but the idea is that an injured party who has proved his case should not have to chase multiple defendants for pro rata contributions. It is fairer to let the responsible defendants work it out, rather than the victim. If a defendant pays more than his share, he can sue the other defendant(s) for contribution. As a practical matter, this rule helps cases resolve by settlement. If a defendant thinks he is slightly less responsible than another defendant, absent joint and several liability he would have incentive to fight to the bitter end.

There are more bad proposals being discussed under the guise of "reform." The people advocating these new changes want to limit a vicitm's ability to hold a wrongdoer accountable, and to give certain classes of wrongdoers privileged status. As you might expect, the current rules that have evolved during the past two hundred years or so should apply to everybody. Suppose lawyers advocated limits on the amount a client can recover for a lawyer's malpractice? Actually, that may not be a bad idea...

And a federal law restricting a state jury's ability to award damages? This from a President whose party champions state's rights, self determination and freedom from government restriction? Out of the question folks.

Copyright 2005 by David L. Turner, all rights reserved.

THIS ARTICLE IS FOR INFORMATION PURPOSES ONLY AND DOES NOT CONSTITUTE LEGAL ADVICE. FOR ADVICE ABOUT A PARTICULAR MATTER, CONTACT COUNSEL OF YOUR CHOOSING.