Tort Reform

Tort “reform” is a clever phrase devised by opponents of the civil justice system to convince the public that changes to our civil justice system are beneficial.

In reality, tort “reform” is an attempt by insurance companies, large businesses and the health care establishment to emasculate the right to trial in civil cases guaranteed by the seventh amendment to the United States Constitution.

Advocates for tort “reform” have attempted to persuade the American public that “frivolous lawsuits” are disrupting the American economy and that “non-economic damages” should be limited to a maximum of $250,000.00.

Claims of “frivolous” lawsuits are widely exaggerated. No reasonably competent lawyer would accept a “frivolous” case because we only get paid if we win the case. Who would take a case and spend the time and expenses necessary to litigate it if the chances of recovery were extremely remote?

Moreover, not only can judges throw “frivolous” cases out of court but there are provisions in the law that allow trial judges to enter sanctions against clients and lawyers who bring “frivolous lawsuits”.

The real reason medical malpractice premiums have gone up is because insurance companies are trying to make up for losses caused by poor investment results over the last few years. Insurance companies make their money by collecting premiums, investing those premiums and then paying out as little as possible.

When interest rates are low and the stock market is not doing well there can be a shortfall in insurance company revenues. Their solution is to raise the premium rates and thereby maintain their profits. Actual payouts by the insurance companies have remained relatively constant.

Proponents of “tort reform” would cap non-economic damages that are the damages for pain and suffering, disability, and, in death cases, for loss of society. Yet non-economic damages are what truly balance the scales of justice for a personal injury victim.

For example, in a recent case, radiation technicians at a hospital carelessly miscalculated the radiation dose for a cancer patient receiving radiation therapy and caused horrific radiation burns to the patient that were extremely painful and disfiguring, and will be so for the rest of the person’s life. The person didn’t work so there was no wage loss and the medical expense recovery had to be paid back to the patient’s health insurance carrier.

So the damages were primarily “non-economic” but very real and substantial. While any jury would surely award millions of dollars for that type of pain and suffering and disfigurement, the business and insurance lobby proposal would limit the damages to $250,000.00. The insurance companies would save the difference and would not be required to reduce their premiums by one cent.

Similarly, if a five-year-old child died due to a doctor’s negligence, there would be no economic loss because dead people don’t incur medical expenses and five-year-olds don’t work. While most juries would award compensation in seven figures for this type of a loss, the “tort reformers” would limit the amount to $250,000.00.

I wonder whether they’d think that was fair if one of their children were killed or permanently disabled due to a careless health provider?

It is ironic that politicians who claim to champion the concepts of less governmental interference and more individual responsibility are trying to force on the American people a law whereby the Federal government would interfere with State court juries comprised of ordinary citizens in order to relieve from responsibility those health care providers who make careless, deadly mistakes.

At Donald A. Shapiro, Ltd. we are committed to fighting the repressive forces that seek to disembowel our civil justice system and thereby protect the profits of the insurance industry and big business at the expense of the most seriously injured people. We urge all our clients to protest this injustice to their Senators and Congressmen.

Check out HBO On Demand or for information on the HBO award-winning documentary “Hot Coffee”. Make sure to see this excellent exposé of how corporate America is spending millions of dollars trying to pervert the civil justice system.

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