TORT REFORM OR RIGHTS REPEAL?
March 31st, 2017 | Michelle M. Quinn
A tort is civil wrong for which a remedy may be obtained, usually in the form of damages.
Tortious conduct could be an act or a failure to act. The purpose of tort law is to compensate the harmed individual and, in some cases, enjoin continuing misconduct.
Torts fall into three categories: intentional torts, negligence, and strict liability. Examples of the first category include defamation, fraud and intentional infliction of emotional distress.
Vehicle accidents, slip and fall accidents and medical malpractice are examples of negligence. Defective product cases fall under strict liability. In these cases, the injured consumer only has to establish that their injuries were directly caused by the defective product in question.
In order to be awarded compensation, the plaintiff must prove that the defendant breached a legal responsibility called the duty of care, resulting in physical, emotional, and/or financial harm. In a tort case, the plaintiff must prove his or her case by a “preponderance of the evidence,” which is defined as “that degree of proof which is more probable than not.” This degree of proof is lower than that of a criminal case where “guilt must be established beyond a reasonable doubt.”
Tort cases were being pursued in US courts in the 1920s. But the Tort Revolution didn’t take place until after World War II. It was fueled by expanded liability, particularly in the areas of defective products, medical malpractice and landowner liability.
The Tort Revolution gave rise to a counter-revolution, with the insurance industry leading the charge. Knowing that insurers would ultimately be held responsible for compensating personal injury victims, the industry unleashed an aggressive public relations campaign.
Tort reform begins
Eventually big business joined the “tort reform” movement. One of their main tactics is to promote legislation that imposes caps on damages. Tort reform often takes the form of restrictive statutes of limitation. In many states, the statute of limitations for medical malpractice is two years. Trouble is, in some cases, the effects of the malpractice may not manifest themselves for several years. By this time, the statute of limitations may have expired.
Another serious concern about tort reform is that if there are fewer legal ramifications for manufacturing an unsafe product, corporations would be less concerned about the safety of products entering the marketplace.
“Tort reform” can often amount to “rights repeal”. A recent Ohio Supreme Court case demonstrates that. The state’s highest court ruled that a girl raped by her pastor during a counseling session at an Ohio church can collect only $250,000 in damages -- not the jury's award of $3.5 million. The ruling was based on caps on non-economic damages enacted by Ohio lawmakers.
In a scathing dissent, Justice Paul E. Pfeifer wrote that tort reform had “ensured that rapists and those who enable them will not have to pay the full measure of damages they cause”. In the process, the victim was deprived of adequate compensation for a lifetime of mental trauma.
Pennsylvania does not impose caps on compensatory damages for injury or wrongful death cases – the Pennsylvania Constitution prohibits that. (There is an exception for lawsuits against Commonwealth parties.) There is a two-year statute of limitations for personal injury, medical malpractice, product liability and intentional tort lawsuits in Pennsylvania. However, in Pennsylvania medical malpractice cases, when the link between conduct and injury is not clear, the “discovery rule” applies extending the statute of limitations to two years from the time the plaintiff knew or should have known that malpractice occurred.
At the federal level, Congress has debated federal legislation that would override virtually all existing state laws governing medical malpractice lawsuits. The current environment may foster a renewed push for national tort reform under the guise of “fixing” the health care system. Proponents of tort reform argue that the high awards and settlements involved in malpractice cases are a prime reason for the high cost of health care. According to research of the nonpartisan Congressional Budget Office, however, a package of reform that includes a $250,000 cap on damages for pain and suffering and a $500,000 cap on punitive damages would reduce total national health care spending by only about 0.5 percent.
At HKQ Law, we encourage you to fight to protect your rights by contacting your legislators and opposing additional tort reform.