Tort Reform Claims Are Unsupported By The Facts

Too often within the escalating debate over “tort reform“, the facts take a distant back seat to ever more shrill demagoguery.

It seems that all we ever hear from proponents of tort reform, and their Republican lapdogs in Congress and in State Houses across the country, are noxiously recycled claims that liability insurance premiums are supposedly caused by “frivolous lawsuits, run amok.” These liability insurer-funded interests claim that if we just enact tort reform (translation: If we decimate our civil justice system,) all kinds of liability premiums, from auto insurance to homeowners insurance to medical malpractice insurance, would drop and stay down. Think again, America: It’s not so. And it rarely, if ever, has been. These claims are the worst form of legislative bait-and-switch perpetrated on the American public. And the driving forces behind tort “reform” – the liability insurance industry – knows it.

Though I have to hand it to them when it comes to campaign strategy planning, because they also know something else: They know that they can’t be the ones to most openly make these arguments, or they’ll appear too self-interested. After all, they’re the ones who stand to reap millions in premium that they’ll never pay out to injury victims, if the doors to the courthouse are forever locked. The best strategic tactic in this case? Get other groups to “front” these claims. The best groups to get to do this? Their customers, who are being gouged by the high liability premiums their carriers charge them. Who are those customers? Doctors, business owners, commercial property owners, private property owners, homeowners, and anyone who owns a car. Anyone who buys liability insurance of almost any kind. All these groups are angry, motivated forces who can be (quite literally) conned into believing that the reason their premiums are so high, is a “lawsuit crisis.” Not a bad strategy, from a public affairs campaign standpoint. Displaced anger is precisely what’s fueling the Tea Party movement, and it works. Just ask any master of misinformation (Karl Rove comes to mind.)

The problem is, almost everything about tort “reform”, is a lie. Or, at the very least, wildy distorted from the truth.

A recent editorial by The Boston Globe, in commenting on recent Congressional activity over the subject of medical malpractice reform, noted that in the over thirty states where some form of medical malpractice “reform” has been enacted by state legislatures, little to no lasting malpractice premium reductions have been experienced. Care to know what has been experienced as “lasting” and “deep” in those states? The loss of crucial legal rights by citizens of those states, to recover for many times horrific injuries caused by medical negligence, that’s what. Those rights were rapidly taken away in the frenzy of “tort reform” that was hyped in those states. In many of those states now, entire classes of medical negligence and other injury cases can no longer be brought to a jury. Of the remaining cases that are allowed, caps on damages –economic and non-economic – are cruelly in place, preventing injured victims from recovering anything beyond a set cap, no matter what the evidence, no matter how egregious the negligence.

Whether the case is a car accident case, a medical malpractice case, or a premises liability case, injury victims in those states are now treated more like statistics and numbers, than real people whose lives have been forever altered due to someone else’s negligence.

And the promised insurance premium reductions that were trumpeted in the process of this destruction of civil justice rights? Oh, that. Yes, in some states there was temporary premium relief – nothing more than token, temporary cosmetic measures by the insurance companies that won at the legislative feeding trough of tort reform. After a year or so, those premiums came right back up – but the civil justice and tort recovery rights that were trampled in the process, never came back. They’re gone. And the legal rights of injury victims in those states? Gone with the wind.

So remember this the next time you hear some talking head on TV, or some blathering loudmouth on radio go on and on about why tort “reform” should be enacted. Remember what “bait and switch” means on this subject. And remember this: If tort “reform” is to be enacted in the state where you live, are you willing to be the first person to lose your rights to recover in court for possibly horrendous, lifelong injuries? Are you willing to be the first person who is locked out of the courthouse, if you’re injured by someone else’s negligence?

See through the “bait and switch” in this debate. Don’t let it happen. Because when it comes to losing these critical legal rights to bring your injury case to court, I’ll borrow a tag line from another worthy cause: Extinct is forever.