Tort Reform Presents as Many Problems as Solutions

Tort reform is an attempt to fix the so-called problem of runaway juries and aggressive trial lawyers. Tort lawsuits allege some kind of negligence or wrongdoing that has caused injury to an individual person, like a passenger or driver of a car that was rear-ended, or a patient who was injured by a doctor in medical malpractice.

One of the more common issues of tort reform movements across the nation, including Texas, revolves around medical malpractice lawsuits. The idea of tort reform involving malpractice suits is aimed at limiting frivolous€ lawsuits“ lawsuits without merit so that only claims with merit are brought before the court system, and so doctors’ insurance rates are reduced. Changing the tort system has been a hot topic in the Texas legislature as well as throughout the rest of the country for the past several years – much of it quite political in nature. Various levels of tort reform have been enacted in several states.

The Unintended Impact of Tort Reform

What tort reform does is limit the ability of an injured patient€“ a patient who was injured because of a doctor’s mistake€“ to seek justice. Some attempts at tort reform include capping noneconomic damages (like in Texas, a state which limits the amount of compensation that can be awarded for pain and suffering).

Another aspect of tort reform in some places includes requiring would-be plaintiffs to obtain an expert opinion – which are very expensive – early on in the case, before the case is even filed. This type of reform is an economic hurdle that stifles an injured patient’s ability to seek justice, in part because medical malpractice claims are expensive to litigate in the first place.

The expense of bringing a medical malpractice case (borne by the attorney) and the risk of losing the case combine to limit injured patients’ options in finding an attorney willing to take the case.

Why Tort Reform Is Wrong

The idea of tort reform is to limit rampant litigation, which is thought to drive up the cost of doctors’ malpractice insurance and the cost of health care generally.

But that’s just not the case.

An attorney will not bring a medical malpractice case that doesn’t have merit – that attorney bears the costs and takes all the risk.

What could be more of a built-in incentive to limit meritless lawsuits?

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