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Tort Reform or Tort Deform

Tort reform is a constant refrain in every political cycle. Litigious plaintiffs and we greedy trial lawyers are frequently blamed for every financial evil society has to endure. A vocal group of doctors continue to blame us and our injured clients for forcing them to practice “defensive medicine” driving the cost of healthcare to astronomical heights. Every year our health insurance premiums face double digit increases–must be those nasty lawsuits and lawyers again!

So what is tort reform and what effect does it have? The core concept is to reduce the opportunity for personal injury lawsuits by creating greater burdens of proof and attempting to cap the damages that can be awarded by a jury. Make it tougher and less profitable on the lawyers and the number of lawsuits will dramatically decrease. Liability insurance carriers love the concept. Small fortunes have been spent in lobbying and brainwashing the public; as if limiting the access of injured victims will actually make for a safer, more collegial society.

The key fallacy in all of this is that tort reform, while limiting lawsuits, does not limit or reduce torts! Torts are civil wrongs, as opposed to conduct that injures while violating our criminal laws. Victims of crime are protected by the arrest and prosecution of the offenders. Victims of civil wrongs must seek their own justice. No state agency stands ready to aid the wage earner condemned to a wheelchair because someone ignored the rules of the road or a doctor performed surgery beyond his ability. Doctors who commit egregious medical errors are often protected from disclosure by arcane peer review laws that keep confidential a hospital’s internal investigation of such conduct. Rarely does the Department of Public Health revoke medical licenses for gross negligence.

For all their trumpeting about the effects that malpractice lawsuits have on the practice of medicine, proponents of malpractice reform offer few concrete suggestions to the wage earner crippled by surgical negligence, who faces a lifetime of hardship. Proponents of tort reform would limit the value of that person’s suffering to $250,000.00 under most damage cap proposals.

While many in the health industry strive to improve the quality of medical care, only the existence of a strong trial bar ensures that the rights of those suffering life changing injuries are fully protected. The burden of proving medical neglect is beyond the ability, financial and otherwise, of most lawyers. When you read about multi-million dollar verdicts there are two things you should consider: 1.) the plaintiff has been severely injured or died; 2.) some law firm has expended costs that approach and often exceed the six figure mark, without recourse if they do not prevail.

Frivolous lawsuits exist. They proliferate more in motor vehicle tort cases than anywhere else. The requirements imposed on lawyers to bring a malpractice case to court ensure that only those cases that another similar medical expert supports can proceed to a jury trial. Tort reform in the mid-80’s did eliminate the possibility of malpractice cases with no merit being filed– that one I have to concede. We are required to file a Certificate of Good Faith, attached to which is a detailed summary of the negligence penned by a “similar healthcare provider.”

Capping damages won’t eliminate mistakes, only dissuade able lawyers from taking up the injured person’s cause. I recently referred the surgical mistake case of a client to a prominent attorney in Florida, the state where the surgery occurred. He declined the case because in that state physicians are only required to have $250,000.00 in liability limits. Most of their docs divest themselves of assets and carry the minimum limits. The net effect is that injured parties in that state have little recourse to the courts. The economics of prosecuting such a lawsuit don’t justify the time and expense required to simply produce $250,000.00.

Rich Meehan