The issue of tort reform continues to persist in American politics, occasionally going under the radar and then seeming to re-appear. It’s an issue that can seem arcane to most citizens but is a hot-button topic in the legal and business communities. Perhaps the best way to start answering the question, “What is tort reform?” is to note that tort reform is not a single legislative idea, as much as it’s a concept.
Proponents of the different measures that fall under the tort reform umbrella are aiming at the basic goal of reducing the number of lawsuits. Supporters contend that our society is out-of-control when it comes to litigation and that the legal system is clogged up by frivolous lawsuits spearheaded by unscrupulous attorneys.
They would argue that the consequences of this are reflected in the high costs of liability insurance for employers, which in turn—it’s argued—serves as a drag on the economy and results in higher prices and fewer jobs for ordinary people.
Opponents of different tort reform concepts start by challenging the very use of the word “reform,” saying it implies a positive outcome when they believe the consequences will actually be just the opposite. They would argue that measures aimed at discouraging lawsuits will embolden unscrupulous business owners to cut corners on product and worker safety while stopping ordinary people from getting justice for valid grievances. The interest on this side lies not in reducing lawsuits but ensuring what they see as fair access to justice.
A good example is the debate over limiting punitive damages—the money that a jury in a personal injury case awards to a victorious plaintiff. The amount is over and above the actual money paid out to compensate them for expenses and work time lost. The purpose of punitive damages—as the name implies—is to punish the defendant and send a message to society.
Tort reform supporters believe the threat of an unpredictably high punitive damage amount results in significantly higher rates for liability insurance, particularly in the area of medical malpractice. They would argue this is the biggest reason for skyrocketing healthcare costs.
Opponents say that no-limit damages keep businesses in check. If cost-certainty were given to a business on punitive damages, they would be able to do a concrete risk assessment of putting a risky product on the market. That might lead a dishonorable business owner to avoid conducting a product recall, believing that the risks were worth avoiding the costs. The uncertainty of the punitive damages is what makes these businesses think twice about endangering their customers.
There are a lot of factors involving how a person comes down on tort reform. Whether you trust business owners or personal injury lawyers more will play a role. So will your own personal experience—one person may have suffered an injury from a defective product that should have been recalled. Another might have been an honest business owner that was broken by the high costs of liability insurance. Everyone’s perception of the issue matters and needs to be heard as the debate continues on.
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