A series of bills aligned with the so-called “tort reform” agenda have been introduced and are working their way through the civil justice system. These measures, long advocated by doctors, and large corporations, would fundamentally alter key protections for plaintiffs in injury lawsuits.
This “tort reform” moniker makes it sound as if such measures would be fixing major flaws in the civil justice system. In reality, these actions would make it tougher for those injured to obtain justice. Tort reform ideals are predicated on the notion that courts are overburdened with a flood of frivolous lawsuits. Greedy plaintiffs and injury attorneys are simply out to take advantage of businesses and physicians to make a buck. Health care costs and other expenses are out of control, they say, due to litigious patients and customers.
Here’s the truth: The burden of proof to bring any claim is already substantial. For example, it’s not enough that you slipped and fell in the store and were hurt. You have to show you had the right to be there. You have to show the store owed you a duty of care. You have to prove the staff either created the dangerous condition on the floor or had actual knowledge of it or should have learned of in the course of regular options and failed to address in a manner deemed timely or else warned of it. Oh, and if the condition was open and obvious, there is an expectation you should have seen it an avoided it. In North Carolina, if you are found to be even slightly responsible for the incident (a legal theory known as comparative negligence), you can’t win your case.
Further, there is no evidence whatsoever that health care costs are being driven up by frivolous lawsuits. Medical malpractice lawsuits have an even higher proof burden than ordinary negligence cases. One must prove the doctor or health care professional breached the applicable standard of care, which can only be proven with the help of expert witness testimony – which the plaintiff has to present long before the case goes to trial.
But what about all those multi-million dollar payments? Tort reform advocates point to a concept called “defensive medicine,” wherein doctors must pay enormous malpractice insurance rates in order to stay in business and protect themselves from those potentially huge payouts to injured patients. The truth is that medical malpractice payouts in excess of $1 million make up just a tiny fraction of the multi-billion dollar hospital industry. There is also no evidence that reducing plaintiff rights results in lower health care costs. Recently, the Florida Supreme Court in rejecting damage caps on medical malpractice claims, put the state legislature on blast for its role in passing a 2003 medical malpractice overhaul law that imposed damage caps on non-economic damages. The court stated the legislature had been wrong to create an “alleged medical malpractice crisis” in order to push tort reform that only modestly lowered costs while imposing devastating costs on those who suffered the most serious personal injuries. Florida’s law imposed non-economic damage caps at $500,000 to $1 million, depending on the circumstances and number of people involved. The court concluded that this unconstitutionally discriminated against those who were most grievously injured.
Now, federal legislators are trying to impose even more stringent medical malpractice damage caps. One of the measures proposed would cap non-economic damages for medical malpractice claims at $250,000. So a baby and her family who suffers a birth injury and is now profoundly disabled for life would only be able to collect $250,000 in pain and suffering.
Another measure, laughably titled, “The Fairness in Class Action Litigation Act,” would essentially slash the ability of anyone to file a class action lawsuit by requiring that all plaintiffs in a class suffer the exact same damages (which is almost never the case).
There is also a new bill called “The Lawsuit Abuse Reduction Act” that would mandate federal judges to sanction lawyers whose claims are deemed frivolous. But as opponents noted in a letter to congressional leaders, such action would have a chilling effect on a large range of complaints, including those for employment discrimination, civil rights violations and environmental damages.
Contact the Carolina injury lawyers at the Lee Law Offices by calling 800-887-1965.
House GOP quietly advances key elements of tort reform, March 9, 2017, By Kimberly Kindy, The Washington Post
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