Tort reform
Tort actions are civil claims for actions—not arising from a contract—that cause a claimant to suffer loss or harm, resulting in legal liability for the person who commits the tortious act.
Scholars and lawyers have identified conflicting aims for the law of tort, to some extent reflected in the different types of damages awarded by the courts: compensatory, aggravated, and punitive.
[a] However, since the emphasis under tort law is on the violation by an individual of a purported duty of care, compensation is determined to a large extent by the extent to which the "at fault" party violated the applicable standard of care with regard to the plaintiff rather than solely by the harm purportedly suffered and distinguishes between negligent and intentional torts (e.g. negligent infliction of emotional distress vs intentional infliction of emotional distress).
Consequently, compensation recoverable through tort suits vary even in circumstances where the injury itself is identical, especially when the "at fault" party is judgment proof or merely negligent rather than intentional in causing the purported harm.
[12] As a result, many jurisdictions (especially in North America) have enacted legislation incorporating elements of common tort reform proposals specifically with regard to lawsuits brought against individuals purportedly exercising freedom of speech.
The California Code of Civil Procedure and Ontario's Protection of Public Participation Act do so by enabling defendants to make a special motion to strike or dismiss which, if successful, would terminate the lawsuit and allow the party to recover its legal costs from the plaintiff.
This implies that existence of the medical malpractice system is beneficial, and its strength should not be diluted by either putting caps on non-economic damages or by decreasing the statute of limitations.
Of the legal changes proposed by tort reformers, this study found that states capping payouts and restricting non-economic damages saw an average decrease of 17.1% in malpractice insurance premiums.
In Texas, tort reform measures have imposed a requirement in medical malpractice cases that only a physician practising or teaching in the same specialty as the defendant can serve as an expert witness in the matter.
Conversely, proponents of tort reform argue that strict liability creates risk of moral hazard as it may cause consumers to under-invest in care and disregard product safety prior to making a purchase.
Originally his proposal was the gradual abolition of tort actions, and its replacement with schemes like those for industrial injuries to cover for all illness, disability and disease, whether caused by people or nature.
Curtailing frivolous lawsuits, especially those brought by lawyers acting in bad faith or charging contingent fees, is a major objective of tort reform.
[48] In common law jurisdictions which allow for extensive pre-trial discovery, the burden and (where the American rule is applied) cost of litigation are not necessarily addressed by summary judgment.
[e] Similarly, public interest litigation in India has been criticised for undermining parliamentary sovereignty and enabling the court system to exert inordinate power over the legislative and executive branches of government.
[10] Controversy further arose when judges began to read such obligations of the state into Article 21 of the Indian Constitution[11] However, opponents of tort reform assert that public interest litigation in India has served to secure "social and distributive justice.
[63] For example, after authors Michael Baigent and Richard Leigh lost their plagiarism litigation over The Da Vinci Code in a British court, they were ordered to pay the defendants' $1.75 million in attorneys' fees.
[72] Another type of procedural reform is to modify the criteria related to a defendant's state of mind in order to increase the burden of proof imposed on the plaintiff.
[73] Opponents of tort reform contend that the elimination of the rule would under-compensate people who had the misfortune to be hurt by more than one person, if at least one of the defendants does not have the financial means to pay his or her share of proportionate liability.
[75] Regulation of contingent fees; as well as rules regarding barratry, champerty and maintenance, or litigation funding more generally; is another aspect of procedural policies and reforms designed to reduce the number of cases filed in civil court.
[81] High-profile tort cases are often portrayed by the media as the legal system's version of a lottery, where trial lawyers actively seek the magic combination of plaintiff, defendant, judge, and jury.
In a study published in 2005 in the Journal of the American Medical Association, 93% of physicians surveyed reported practicing defensive medicine, or "[altering] clinical behavior because of the threat of malpractice liability.
[82] Forty-two per cent of respondents reported that they had taken steps to restrict their practice in the previous 3 years, including eliminating procedures prone to complications, such as trauma surgery, and avoiding patients who had complex medical problems or were perceived as litigious.
[88] The bill represented "an almost visceral fight between the insurance industry, Texans for Lawsuit Reform and trial lawyers whose symbolic leader in storm-damage claims in Steve Mostyn of Houston.
According to SE Texas Record, "The bill also seeks to end barratry in hail litigation, as reports of lawyers employing contractors and insurance adjusters to drum up clients have continued to surface the past several years."
This is in stark contrast to continental Europe and the majority of Asian, African, and Latin American jurisdictions in which juries either never existed or were abolished following decolonisation (e.g. in India,[90] Singapore,[91] and most former British colonies in Africa[92]) as an anachronistic institution that routinely introduced societal biases into the judicial process.
In this view, the prospect of paying a small damage award would have little or no effect in correcting the wrongdoing, and would essentially allow the corporation to continue an unsafe practice unless state or federal regulators interceded.
[107] Beginning in the early 1980s, Professor Stephen Teret and other faculty at The Johns Hopkins University School of Public Health argued that tort litigation was an important tool for the prevention of injuries.
[108] While Teret acknowledged that the primary purpose of tort lawsuits usually is to recover money damages for the injured persons, as compensation for their medical and other costs, he identified several ways that litigation can also enhance safety for everyone, including: (1) to avoid paying future damages, the creators of dangerous products or conditions may voluntarily make them safer; (2) where conduct is particularly egregious, courts may award punitive damages to deter that conduct in the future; (3) the process of gathering information prior to trial – called 'discovery' – can bring information to light that can be used by policy-makers to create new laws or regulations.In contrast, a 2006 study by Emory University professors Paul Rubin and Joanna M. Shepherd argued that tort reform actually saved tens of thousands of lives because "lower expected liability costs result in lower prices, enabling consumers to buy more risk-reducing products such as medicines, safety equipment, and medical services, and as consumers take additional precautions to avoid accidents."
[citation needed] Harvard Business School professor Michael E. Porter stated: "product liability is so extreme and uncertain as to retard innovation.
Even if we assume that asbestos liability legislation could somehow have prevented the loss of 2,500 jobs per year resulting from asbestos-related bankruptcies (by, for example, limiting compensation for non-economic damages to the victims or their survivors, or by denying awards of punitive damages), the effect on overall employment and the national unemployment rate in an economy with more than 130 million payroll jobs would have been imperceptible (a change of less than two-thousandths of 1%).Critics of tort reform also contend that the real purpose of the proposed changes is to shield businesses, especially large corporations, from having to pay just compensation to consumers, patients and clients for the harm incurred from fraud, negligence, medical malpractice, product liability or other legitimate tort claims.
