We have all been bombarded with talk demanding “Tort Reform” from special interest groups and politicians who have accepted what their lobbyists say as true, with no independent verification of their own. The rhetoric is of “frivolous lawsuits” and a “medical malpractice crisis.” The suggestion is that anyone who brings a lawsuit is looking for something for nothing, driving up healthcare costs and ruining the country.
Tort law is that body of law that provides compensation to a person harmed by the wrongful conduct of another. Tort law serves two important functions in a civilized society. The first is to provide a means of shifting the burden of harm caused by wrongful conduct from the innocent victim and the taxpayer, to the wrongdoer. What never gets discussed by “Tort Reformers” is that taxpayers pay a heavy price for medical bills caused by negligence. When a jury allows compensation, the government is reimbursed for those expenses, taking the burden off the innocent victim and the taxpayer.
In 2000 the Journal of the American Medical Association estimated that medical errors in U.S. hospitals cause 250,000 deaths annually, making it the third leading cause of death in the country. An article by Marshall Allen titled “First Do No Harm” (Washington Monthly March/April 2011), quotes a study by the U.S. Department of Public Health and Human Services that concludes “incidence of avoidable medical errors across the entire population…affected 1.5 million people and cost the U.S. economy $19.5 billion in 2008.” The driving up of healthcare costs is not the fault of medical malpractice lawsuits, the data suggests, but is centered on the attitude and execution of the medical care itself.
The Institute of Medicine has estimated the average U.S.hospital patient is subject to at least one medication error per day and the “financial cost of treating the harm done by these errors conservatively comes to $3.5 billion a year.”
An editorial in the March 19, 2011 USA Today pointed out that “If a 747 jetliner crashed every day, killing all 500 people aboard, there would be a national uproar over aviation safety and an all-out mobilization to fix the problem. However, in the nation’s hospitals…about the same number of people die on average every day from medical ‘adverse events,’ many of them preventable errors, such as infections or incorrect medications. Where’s the outrage?”
When professionals violate the teachings and standards of care of their specialty, providing substandard care and causing needless injury, should we close the courthouse doors to the innocent victim? Should we say the violator should be responsible for only some of the harm caused? This is precisely the goal of “Tort Reform,” to immunize the violator by either preventing or severely limiting the right to full and fair compensation. A byproduct of allowing full compensation to those harmed by wrongful conduct of others is making everyone safer by holding those who do not follow the rules accountable. Accountability promotes safety.
Every time someone who does not follow safety rules causes harm to a member of your community but is given a “pass” and not held accountable, the standard of safety in your community is changed. A new, lower standard takes the place of the previous safety rule. Accountability breeds adherence to safety standards. Whether it’s a trucker with faulty brakes, a construction company using substandard materials causing the roof of a tunnel to collapse, a pharmaceutical company whose lax standards injure or kill patients, or a physician who does not follow the standards of his or her profession, letting it slide exposes us all to increased danger.
I have seen the power of tort cases make our communities safer not only in the medical field, but also on our communities’ roads. I tried a case before a jury in Middlesex Superior Court involving a trucking company that refused to put reflective tape on the sides of its trailers. One of its tractor-trailers had backed onto an unlighted roadway on a rainy night, resulting in the death of a young father. The trucking company’s safety director testified at trial that the law did not require the company to install reflective tape on trailers already on the road. He testified that it would cost $149 to add the reflective tape to each trailer and that as far as the trucking company was concerned it was the problem of other motorists if they did not see the trailer. The safety director said that the company had no present intention of installing the reflective tape. The case concluded and the family was compensated.
Equally important to the community was that within two weeks of the trial, the company changed its policy and installed reflective tape on its trailers. Holding a wrongdoer accountable discourages unsafe behavior and makes our communities safer. Giving a wrongdoer a pass encourages unsafe behavior and endangers us all.
Make no mistake about it; the promoters of “Tort Reform” are driven by special interests. Their agenda is to take away your rights; your right to adequate compensation if someone does not follow safety rules and injures you or a member of your family, your right to hold accountable those who do not follow the rules, your right to insist that safety standards in your community not be lowered by anyone who will not have to face the innocent victim or his family and live with the harm caused. Once these rights are taken away, you will not get them back when you may need them most.
So the next time someone suggests that “Tort Reform” is a good idea, ask yourself “For whom?” Whose interests will be protected by immunizing negligent conduct? Is it good for the innocent victim? Is it good for the taxpayer who will have to pick up the bill for the sub-standard medical care? Is it good for the safety of your community by lowering the standards so that negligent conduct is now acceptable? Or is it good only for the violator of safety rules and standards that are there for the protection of you, your families and the members of your community? Looked at in this light, maybe “Tort Reform” is not such a good idea after all.