What Tort Reform Really Means to Injured People

The term "tort reform" is bandied about on radio talk shows, television news programs, and in newspapers and magazines as if it's a public good. Further, if you were to believe what you hear from large corporations, insurance companies, their lobbyists, and certain politicians, you would think that the American economy is grinding to a halt due to injured people filing lawsuits. These arguments fall under the cynical catch phrase of "tort reform." Those who push the notion that there is a "litigation explosion" perpetuate a myth by lies, exaggerations, and disinformation. But few people really understand the impact that tort reform has on ordinary working people.

According to Black’s Law Dictionary, a tort is “[a] private or civil wrong or injury … for which the court will provide a remedy in the form of an action for damages.” The most common tort cases involving average citizens are personal injury lawsuits, medical malpractice lawsuits, product liability lawsuits, and premises liability lawsuits. However, businesses sue other businesses about 4 times more frequently than individuals who bring suits against insurance companies and businesses. However, you don't see businesses pressuring Legislatures to limit their rights to sue other businesses.

"Tort reform" is legislation passed on behalf of companies to limit the damages they have to pay to a victim (or group of victims) thereby protecting companies, usually after a company has been found liable for causing financial losses, personal injury, or wrongful death.

Tort reform says to the injured person, in essence: "No matter how much you've been wrongfully injured, regardless of your expenses now and in the future, no matter how much hardship you and your family will endure, this is all you can get." That hardly seems fair or just, especially in cases where the guilty person or company was egregiously wrong and the damage was severe.

Why is there not a greater effort by the public to stop the activities of corporate interests and their lobbyists? The answer is simple. Most individuals do not see themselves as future victims of negligent acts. People, unfortunately, are too quick to buy into the lies and exaggerations of corporate America. Individuals do not have the time to research the facts and develop the critical thinking necessary to wage any type of campaign against corporate disinformation. No one wants to believe that corporate America will develop or continue to produce unsafe products. (However, just think of asbestos and cigarettes.)

So why does the idea of tort reform get so much airtime?

There are numerous "reasons" tort reform proponents give for wanting to restrict the amount of money that injured people and grieving family members can recover, including:

• The courts are overwhelmed with frivolous personal injury and medical malpractice cases.
• Juries and judges award so much money that companies can't afford to do business or may stop producing certain products.
• Medical malpractice is driving up medical costs and causing doctors to leave the field of medicine.

These sound like good reasons, but the facts just aren't there to back up these assertions:

• There are more business versus business cases than injury lawsuits.
• Judges and juries—especially those in Wisconsin—can usually be counted on to provide reasonable relief based on the extent of the injury and costs incurred by the injured person and family. When we see juries awarding large damages, it is usually because the injury was severe and the defendant acted with callous disregard for public safety.
• When products are removed from the market after a lawsuit, it’s because they are dangerous. Those products—and those companies—don’t need protection: consumers do. And a product liability lawsuit is one of the very few ways that consumers can penalize a company that has endangered their safety; sadly, only after people have been injured or killed.
• Medical malpractice insurance makes up a very small percentage of total medical costs. Far more expensive to every health care consumer is the high cost of executive salaries and administrative overhead.
• Like product liability lawsuits, medical malpractice cases can actually make medical care safer for all of us.
• In Wisconsin, in 2001, 8,581 tort cases (i.e., personal injury, products liability, medical malpractice) were filed as lawsuits, out of 256,596 civil cases filed. This represents approximately 3% of all civil filings. In 2001, the total court filings were just over 1 million in the State of Wisconsin. Therefore, the tort filings constituted less than 1% of all cases filed in the State of Wisconsin. In fact, it has been reported that there are four times as many business versus business lawsuits than tort lawsuits.* Sound like a tort litigation explosion?

* Public Citizen Congress Watch, Frequent Filers: Corporate Hypocrisy in Accessing the Courts (2004).

The truth is, insurance companies are making record profits and seeking government protection for those profits at the expense of injured people whose only remedy is to be able to fight them in court.

If you're seeking compensation for physical and financial damages you’ve suffered because of an injury you received using a dangerous product, from an accident on an unsafe property, or from medical errors, it’s only fair that you have the ability to seek justice in court.

What can you do? Pay attention to actions in the Legislature which are intended to potentially curb your rights or your family's rights as injured individuals. Find out who is supporting the changes. Determine how those changes will affect an individual's rights. Demand facts. Demand justification for the changes, not simply protection of an industry's profits. If an industry or company is negligent, it's the shareholders' job to demand the better product or better practices, not the Legislature's job to protect a bottom line.

Contact an injury attorney at the Wisconsin law firm of Previant, Goldberg, Ulemen, Gratz, Miller & Brueggeman, S.C.