What is a Tort?
To fully understand tort reform, it only makes sense to begin with the definition of a tort itself. A tort is a non-criminal civil wrong that involves an injury – physical, mental, or monetary – that is caused either through purposeful or negligent conduct.
Examples of torts include negligence, assault, false imprisonment, or medical malpractice.
What is Tort Reform?
Tort reform is legislation that has passed in a number of states in an effort to reduce the number of frivolous lawsuits against medical practitioners, which would also result in lowered malpractice insurance premiums.
Essentially, tort reform refers to change in the civil justice system that effectively reduces the ability of victims to files lawsuits, or to reduce the amount in recovery that a victim can receive.
The issue of tort reform has been highly contested since its introduction to the U.S. civil justice system. Its enactment allows for placing time constraints on the amount of time that a victim has to file and recover for medical negligence, procedural constraints and limits on the ability to file claims, and damage caps affecting the amount that a victim may recover.
In some states, tort reform has also placed limits on the amount that attorneys can recover in attorneys’ fees.
Why Was Tort Reform Enacted in Certain States?
The primary impetus behind tort reform is economic. The idea propagated was that the costs of litigation and compensation payouts were raising the cost of insurance. Additionally, it has been suggested that the costs related to medical malpractice lawsuits may also increase health care costs, and decrease the quality of health care.
With over 195,000 deaths due to negligence in the U.S. each year, the number of lawsuits related to medical negligence was considered to have been extensive, and possibly even frivolous.
According to various studies, however, the costs associated with medical malpractice lawsuits was relatively low, and tort reform has not necessarily made any difference, other than making it increasingly difficult for victims to seem compensation or recourse for medical negligence.
Why Does Tort Reform Matter?
Tort reform matters because it has made victims’ ability to seek compensation and justice for medical negligence extremely difficult in Tort Reform States. With damage caps, time limitations, and procedural requirements that make medical malpractice claims difficult to pursue at best, it has also made it practically impossible for attorneys to pursue these cases in some states.
In Texas, for instance, the number of medical malpractice plaintiffs’ attorneys decreased significantly after tort reform was passed in the early 2000s. With strict requirements, damage caps, and high expenses involved in pursuing these claims, a number of attorneys who previously represented victims of medical negligence are no longer able to pursue these types of cases.
How Does Tort Reform Affect Me?
If you live in a tort reform state, such as Texas, you may be affected in any number of ways. For instance, the number of attorneys pursuing these cases has decreased. Secondly, if you are able to find a firm that will take your case, the amount that you can recover is limited. In most instances in Texas you are limited to $250,000 for mental anguish, or pain and suffering. In other instances, you may be limited to $100,000.
Unfortunately, another side effect of tort reform is that it may have hindered the progress of patient safety initiatives.
As stated in a recent Forbes article titled, “On Tort Reform, It’s Time to Declare Victory and Withdraw,” a recent publication of a major study in the New England Journal of Medicine disclosed that tort reform measures passed in three states did not reduce the number of expensive tests and procedures that ER doctors prescribed. Translation: ER doctors will tend to order expensive tests and procedures regardless of the consequences or threat of a medical negligence claim.
The problem? That the alleged problems did not actually exist prior to tort reform. The Department of Justice found that the median medical malpractice award in jury trials was $400,000 prior to tort reform, and in bench trials the median award was $631,000. This goes to show that one of the primary reasons for the enactment of tort reform – high medical malpractice awards that could adversely affect quality of health care and costs – was basically a non-issue.
The study further explained that the number of procedures and tests run in Emergency Rooms in three tort reform states – Texas, Georgia, and South Carolina – neither increased nor decreased after tort reform swept the states.