Pros and Cons of Tort Reform Compared to Current Legal System in US

You are visiting a local shopping mall when you slip on a puddle, and break your leg, this is considered a Tort. A tort is any wrongful act, or accident that leads to a legal liability. Torts can be broken into two categories: Intentional Torts, and Negligence. An example of intentional torts may be getting hit in the head by a bat with the intent to cause harm, if the victim was accidentally hit this would be considered negligence. Negligence is the most common type of tort because most of the cases are accidental and a result of carelessness. If a person gets injured by a defective product, this is an example of strict liability torts meaning one can be held responsible even if there is no proof of fault. There are four key elements for tort cases: duty, breach of duty, causation, and injury. The first element is the presence of duty; did the defendant take all the precautionary measures to prevent this from happening? Breach of Duty is the second element which asks “did the defendant fail to perform their duty?”. Following the breach of duty, the next step is to find the exact cause of injury. The final step is what are the damages, and life changing are they?

Almost all personal injury cases fall under torts, making it one of the largest classifications for civil litigation. Many countries have eliminated the practice of torts, but the United States holds onto the belief that if someone is injured, justice is due. When a plaintiff is filing a lawsuit against the defendant they sue for the amount of money they believe is owed to them to make up for damages. Some may decide to sue for punitive damages which is when the plaintiff is awarded beyond just the compensation but to punish the defendant and prevent them from committing the act again. For many victims the amount they may sue for is limitless, but in some states there is a cap to limit how much a victim can sue for damages, this is called Tort Reform.

Tort reform has been practiced since the 1970s when insurance companies and major corporations began to advocate for it, to protect themselves from future lawsuits. They had lobbied, and released advertisements publicizing that the civil justice system is biased towards victims. It had become a topic of controversy once again in 2010 when the Republican party won control of the House of Representatives. A promise made by the republicans was to ameliorate current tort laws. Tort Reform is created to prevent the verdicts from being too large as many of them are caused by foolish actions. The three goals of tort reform is to restrict people from filing lawsuits, place restraints on how much damages a victim may acquire, and prevent civil cases from going to court.

The most considerable type of law that tort reform has affected is Medical Malpractice. Medical Malpractice is when a medical professional causes damage to a patient through carelessness, or error. Tort reform in medical cases is intended to protect doctors, and hospitals from being sued by significant amounts of people. As one of the main goals of tort reform is to lower the amount of civil law cases brought to court, leading to victims choosing to settle out of court. Because of this, many lawyers are hesitant to take on a case as their contingency fee would be very minimal because their clients may only sue for a limited amount. An article published by Justia speaks about the current states that use Tort Reform for Medical Malpractice, this article reveals “In states that have implemented medical malpractice lawsuit caps, average malpractice insurance premiums have dropped because rates of litigation have fallen. In addition to caps, many states implement pre-suit litigation procedures to cut down on the number of lawsuits. These procedures require claimants to make a preliminary showing of medical negligence to a board or present an expert certificate to the court before pursuing a lawsuit against a medical professional.” States using Tort Reform have been very successful with limiting the amount of medical malpractice cases in their state. Although there is proof that tort reform works states are still skeptical which prevents Tort Reform from becoming a federal law. A study published in 2011 by Public Citizen examined the consequences of tort reform in Texas from its restraints on non-economic damages in 2003. They had concluded that medical malpractice lawsuits had declined, but insurance premiums had rapidly skyrocketed significantly higher than the national average. As a result, the amount of Texas residents with health insurance was elevated.

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Tort Reform has been implemented in thirty-six states to date, most of those imposed caps are on medical malpractice cases. As reported by Doug Benet, writer for Merritt Hawkins the caps imposed on these states range from $250,000 to $2.25 million. Tort reform has been a controversial topic because it is believed that by enforcing limitations the legal system is protecting businesses, instead of victims.

The main pro of tort reform is it brings an end to frivolous lawsuits, as they are seen as a waste of time. By placing a cap on these cases it would eliminate the amount of punitive damages a plaintiff may sue for. The defense for this is that “The justice system is about making people whole. It should not be about making people become rich because of a mistake or unexpected circumstance.” according to Crystal Lombardo, in her article “11 Important Tort Reform Pros and Cons” published on Vittana Blog. There are cost efficient alternatives to court cases like settling through arbitration and mediation that would still reward the victim just in a quicker way. Having tort reform eliminates the focal point of a lawsuit being its monetary value. Instead this allows the judge to concentrate on the facts to determine who is at fault, and provide justice for the victim. One of the leading reasons for tort reform is restricting the amount of attorney fees a lawyer may receive. As it is foolish in some cases for the attorney to receive more than the victim.

Tort Reform has neglected to become a federal law because many still doubt the effectiveness, and how ethical it is. A huge reason for anti tort reform supporters is it can possibly create more injustices verses eliminating the possibility of causing more. By limiting punitive damages, it limits the punishment a defendant will face making it possible for them to repeat this injustice. By putting tort reform in place, it decreases the damages and fault the wrongdoer does regardless of how significant the tort was. The Good Samaritan Clause protects those who assist the injured party even if they were injured as a result of their assistance. Specifically, this clause protects healthcare providers, and medical professionals by reducing liability. By limiting liability it allows corporations to act unethical with little to no price to pay.

The main point of the US legal system is to provide justice to those who have been victims as a result of someone else's negligence, implementing tort reform may possibly do the complete opposite. Victims will be forced to accept insignificant awards, settle outside of court, and prevent them from pursuing lawsuits. The United States constitution is made up of 27 amendments that protect the rights of American citizens. The 7th amendment assures that everyone has the right to a jury trial whether it be a civil or common law case. The right to a jury trial has been in practice for over 800 years, beginning at the signing of the Magna Carta of 1215. Tort reform poses a threat to the 7th amendment.