Tort Reform Is Bad for America

For years, product manufacturers, drug companies, the medical profession, insurance companies, political conservatives, and others have been clamoring for “tort reform” as a partial solution to the economic woes of business. A “tort” involves a personal injury to one person caused by the carelessness (“negligence”) or intentional misconduct (such as an assault) of another person. It may be the result of a driver’s inattentiveness to the road, resulting in his or her running a stop sign and crashing into another vehicle. It may result as a “slip of the knife” by a surgeon who mistakenly removes a person’s good kidney instead of the diseased one. Or it may involve personal injuries caused by a defective and dangerous product that causes injury while it is being used in a foreseeable manner.

The medical profession was able to convince the California legislature back in the mid-1970s that skyrocketing insurance premiums were threatening to cause doctors to go bare (that is, without malpractice insurance) or quit practicing medicine altogether. The medical profession blamed the drastic increase in the cost of malpractice insurance on outrageous sums being awarded by juries and an abundance of frivolous, even fraudulent, lawsuits that were being pursued by unethical lawyers. As a result of heavy lobbying by the medical profession and the insurance companies that insure doctors, the California legislature passed the Medical Injury Compensation Reform Act of 1975, commonly known as MICRA. The

Among other things, MICRA limits the victim of a doctor’s blunder to $250,000 for “non-economic” damages, such as pain and suffering, loss of enjoyment of life, inconvenience, and loss of comfort and society. Say an orthopedic surgeon made a mistake while operating on a patient’s upper spine (composed of seven bones called the cervical vertebrae). As a result of the doctor’s incompetence, the patient is paralyzed from the neck down. Although the innocent patient can recover for all of his or her medical expenses, including future medical expenses related to the doctor’s negligence, the patient can recover no more than $250,000 for pain and suffering, loss of enjoyment of life, comfort and society.

Tort reform benefits wrongdoers and penalizes innocent victims. When a person is injured by another person’s negligence, resulting in paralysis, loss of a limb, a traumatic brain injury that leaves him or her in a permanent vegetative state, or is severely burned when a faulty gas tank explodes in an auto accident, tort reformers want to limit the amount of money the innocent victim can recover for his or her injuries. The main target of their efforts is at limiting the amount the victim can receive for “non-economic” damages, such as pain and suffering, loss of enjoyment of life, loss of comfort and society with the victim’s loved ones, and loss of intimacy and sexual relations with the victim’s spouse, domestic partner, or significant other.

In the United States, under a legal procedure that has generally worked well since the founding of our country, an impartial jury of one’s peers has been entrusted with making the determination of how much is a fair and adequate award to the injured victim. The jury, after hearing all the testimony of witnesses, weighing all of the evidence, and deliberating among themselves, decides what is a fair and adequate award in a particular case. The innocent victim of another person’s carelessness should receive the total amount awarded by the jury.

To place an arbitrary limit on how much an injured person can recover is unfair and takes the decision of how much a victim is entitled to out of the hands of the jury. Each case is unique and requires the testimony of the victim, his or her family members, medical experts, forensic accountants, and others. Suppose the father of a seven-year-old boy is paralyzed in a car crash. How do you place a value on the father’s pain and suffering of being trapped inside a body that doesn’t work anymore, or the loss of society and comfort? No longer will the father be able to play catch with his son, take him fishing, go on camping, or doing typical father-son activities.

Tort reform affects the most seriously injured victims, those most in need of—and deserving of—full compensation. The decision as to how much money the innocent victim should receive should remain in the hands of the jury and not subject to an arbitrary monetary limit that only benefits wrongdoers and their insurance companies.

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