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Wednesday, September 16, 2009

Tort Reform

What exactly is tort reform?

This expression has been bandied about quite a bit lately, usually associated with the Health Care Bill before Congress. I have a suspicion that there are a number of us who are somewhat confused as to what tort reform actually is. Here goes….

From my layman’s perspective, I will attempt to explain what tort reform is. Here’s the Legal Dictionary definition of tort reform: “change or alteration of laws imposing civil liability for torts especially to limit liability for punitive damages.” Have you got that? No? How about this: “Tort reform refers to proposed changes in the civil justice system that would reduce tort litigation or damages.” Still confused? So am I. Entering into the topic of tort reform is daunting, so bear with me.

Let’s start with the word “tort.” What is the meaning of this word? The root of the word means “twisted.” Webster’s Dictionary says, “A wrongful act for which a civil action will lie except one involving a breach of contract.” What? This doesn’t help! Stay with me – I’m trying to figure this out. Here’s another way to look at tort: “Tort requires those responsible (or ‘at fault’) for harming others to compensate the victims, usually in money. The person injured can get a monetary payment to make up for their loss. This can include loss of income (while the person recovers), medical expenses and a payment for pain and suffering – even loss of a body part.” Lovely! Not really satisfied with these definitions, I called my brother, John, an attorney for a Washington DC law firm which handles corporate law. He told me that tort is simply a situation where a person or property is harmed or damaged, or a person’s character is wrongly besmirched.

Elsewhere it has been stated that “the classical purpose of tort is to provide full compensation for proved harm. This is known under the Latin phrase ‘Restitutio in integrum’ (restoration to the original state). In other words, the idea underpinning the law of tort is that if someone harms someone else, they should make up for it.”

At first blush this is all very reasonable in the manner in which it is intended. However, a major problem with tort reform is what is referred to as “frivolous lawsuits,” and then the “trial lawyers” who make a living on such cases. This is a situation where in medical circles, lawsuits are often leveled against doctors who have allegedly mishandled a patient either through misdiagnosis, or a botched surgical procedure. The tort idea was originally intended to protect the patient from a physician’s malpractice. Because of the supposed “deep pockets” of the physicians and especially the health care industry in general, many frivolous lawsuits appeared. Frivolous lawsuits are when there is no evidence of a doctor failing to perform his duties as a physician; but so as to avoid having to go to court it is simpler and less expensive for doctors and insurance companies to settle such matters out of court. Those seeking to reform the health care industry are attempting to limit the amount of money asked in compensation for alleged malpractice. Doctors pay annually enormous amounts of money for malpractice insurance. Most do so in order to continue to practice medicine. Some doctors refuse to pay for malpractice insurance, trusting that their services will be appreciated by those they treat. They do so at great risk, because they could be sued and lose everything they have worked for. They also refuse to pay for malpractice insurance because it allows them to keep their costs to their patients down.

My friend, Will, is a retired Navy doctor. He gave me an interesting view on all of this. When I asked him what his thoughts were on tort reform, he responded, “Shakespeare said it best: ‘Kill all the lawyers.’” He then told me that tort reform is not in any of the health care bills presently before Congress. I asked him why that was. He said it is because Congress is afraid to take on the trial lawyers. He postulates that as much as 30% of current medical costs could be significantly reduced simply by removing the excessive number of frivolous lawsuits against doctors.

Recently, former Democratic National Committee chairman and presidential candidate, Howard Dean, made a very enlightening statement in a town hall meeting. “Asked by an audience member why the legislation does nothing to cap medical malpractice class-action lawsuits against doctors and medical institutions (aka ‘Tort reform’), Dean responded by saying, ‘The reason tort reform is not in the [health care] bill is because the people who wrote it did not want to take on the trial lawyers in addition to everybody else they were taking on. And that’s the plain and simple truth.’”

Let me sum this up with a quote I ran across. This admonishment from James A. Garfield, the 20th President of the United States (1881), is something each and every American needs to remember this time next year when we are preparing to vote on our congressional representatives in the mid-term elections.

“Now, more than ever before, the people are responsible for the character of their Congress. If that body (Congress) be ignorant, reckless, and corrupt, it is because the people tolerate ignorance, recklessness, and corruption.”

Pay attention. Get informed. And vote!

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