“Tort Reform” or “Tort Deform?" (Part I): Caps on Damages

The Legal Seagull: Law | Litigation | Self-Help | Legal History

Despite popular belief, “tort reform” has nothing to do with pastries or small cakes (see “tortes” or “tarts”). Torts include a variety of civil lawsuits (e.g. personal injury, wrongful death, medical malpractice, professional negligence, premises liability, defamation and more). “Tort reform” is a term coined by proponents of laws enacted in most states to “reform” our civil liability system. The most controversial of these laws are caps (limits) on the amount of damages a person can recover against a defendant in a medical malpractice lawsuit. In this episode, we discuss the stated purposes of caps on damages and the rebuttals of those who claim these laws amount to nothing more than “tort deform.”

We discuss the following in detail:

– The history of “tort reform” laws in the United States.

– The stated goals of “tort reform” laws:

– Eliminating frivolous lawsuits and “lawsuit lotto.”

– Reducing insurance companies’ payouts- thereby causing professional liability premiums to go down.

– Reducing healthcare costs.

– Preventing “defensive medicine” among physicians and hospitals.

– The rebuttals by opponents of “tort reform” laws:

– The lack of evidence that “tort reform” laws have reduced physicians’ premiums, healthcare costs, or defensive medicine.

– Caps on damages tend to affect those who are most severely injured and in need of financial recovery, such as children, the elderly, and the poor.

– Placing an arbitrary cap on damages invades the role of the jury, which has always had the role of deciding the extent of damages (if any).

– Do caps on damages actually work?

– Are caps on damages unconstitutional?