Medical Malpractice: The Mythical Solution of Tort Reform

Tort Reform is back in the news. The Republicans in Congress insist that Tort Reform in the medical malpractice field is an essential part of any reform of our health care system. Tort Reform sounds like a great idea, doesn’t it! Reform is always good because it means something must be wrong. Something needs fixing. And fixing it will make it better. What sounds good must be good, right?

In truth, Tort Reform is a myth cooked up to take away individual rights. Long ago, the powerful corporate interests and their conservative allies learned that claiming the judicial system is broken and needs fixing, while false, pays large dividends. Corporate America is terrified of the jury system because only there can it be held fully accountable for wrongdoing. When ordinary folks sitting on juries hear about corporate shenanigans, they will administer justice – justice in the form of big judgments.

This idea of a broken judicial system has resulted in folks around the country accepting that something is broken and needs to be fixed. What ordinary folks don’t appreciate is that the major wrongdoers in corporate America — the giant insurance companies, drug manufacturers and for profit health care conglomerates — have been bankrolling a propaganda campaign against the judicial system for years with millions of dollars. Along with the propaganda, these corporate wrongdoers have also been big contributors to politicians who support their agenda. As a result, many states have enacted part of the tort reformers’ agenda.

Who has benefited from the “reforms” brought about? One of the popular “reforms” has been placing a “cap” or limit on the maximum amount of any verdict. These caps on damages have been enacted in many states, including Virginia. Caps sound like a good idea, until you ask whose verdict will be reduced by a cap? Will it be the victim of a whiplash, a broken arm or a sprained back? No. Folks with modest injuries are awarded modest damages by juries of their peers. The only people who are hurt by caps are the victims of terrible injuries, those who lose an arm or leg, who suffer a spinal cord injury with paralysis, those with severe chronic pain, and those who are sentenced to life in a wheelchair, usually with associated health problems and often a shortened life expectancy. Catastrophic injury cases are the cases where juries make large awards. Why is it fair to say to those who are the most grievously injured that they must suffer more by having their verdict reduced to an arbitrary cap? After a jury of ordinary people has already found that their injuries and losses are worth more than that?

Editors Note:

Some “reformers” argue that such caps are to correct the problem of “runaway” juries. Of course, their definition of a “runaway” jury is one that awards a large amount of money in a verdict. In our justice system, we already have two methods of preventing this problem. First, in jury selection, each side gets a certain number of “peremptory strikes”. That means each side gets to eliminate a certain number of jurors from the jury panel without any reason. In Virginia, in a civil trial, of thirteen jurors each side gets to eliminate or “strike” three jurors, leaving a jury of seven people. Presumably each side strikes the jurors they think are the best for the other side, so there is a “leveling” effect from this process. Second, if a judge thinks that – based on his or her experience – the verdict is grossly excessive, the judge is permitted to order a reduction or “remittitur”, which requires the winning party to choose between accepting a specific reduction or having another trial with a different jury.

In addition to correcting the alleged problem of “runaway” juries, the insurance companies and doctor organizations claim that caps on damages are necessary to save money by reducing the costs of “defensive medicine”. But no independent study has ever confirmed that there are unnecessary tests being ordered because of a fear of being sued. Unnecessary tests may be ordered, but more likely the cause is our current fee-for-service system where the more a doctor does, the more he gets paid.

Ordinary working men and women in this country should understand that the “Tort Reform” sponsored by the rich and powerful corporations is really a movement designed to destroy the right of ordinary folks to have a jury of their peers decide on the value of life and limb. Tort reform hurts people and only helps wrongdoers and their insurance companies. Having access to justice and an independent judiciary is something every citizen should be proud of and something we all should fight to preserve.