Within the past couple of weeks, “tort reform” has reemerged in the news as an important political issue at both the federal and state levels. Current tort reform focuses primarily on medical malpractice, product liability and mass tort cases. Here are summaries of some recent tort reform developments as well as recommended resources and blog posts:
During the recent two-day White House-sponsored economic conference, President George W. Bush claimed American companies are suffering a competitive disadvantage because of the high cost of lawsuits and legal insurance in the United States. According to the President, "The costs of frivolous lawsuits in some cases make it prohibitively expensive for a small business to stay in business or for a doctor to practice medicine, in which case it means the health care costs of a job provider or job creator is escalating."
Ohio Tort Reform
I. On December 9, 2004, the Ohio General Assembly passed personal injury tort reform legislation which will become law 90 days after Governor Bob Taft, a proponent, signs Senate Bill 90. Highlights of the legislation, as reported by the Cincinnati Enquirer include:
A. Pain and suffering awards are capped at $500,000 for less severe injuries while judges are granted greater discretion to review and reduce (but not to increase) awards in more serious injuries.
B. Obese persons cannot sue fast-food restaurants over weight or other health problems.
C. Caps are placed on punitive damages.
D. A 10-year statute of limitation is placed on most personal injury and wrongful death lawsuits.
E. Damages are limited for automobile accident victims who are not wearing seatbelts.
F. The definition of frivolous lawsuits is expanded.
II. The following Blogs include posts commenting on Ohio’s new tort reform legislation:
A. A December 10, 2004 post in The Indiana Law Blog also includes a summary statement comparing current Indiana law.
B. A December 10, 2004 post in the HealthLawProf Blog quotes Cleveland plaintiff attorney Peter Weinberger as saying caps on awards "have been held to be unconstitutional at least twice" by the Ohio Supreme Court and adds this comment: “Ohio's Supreme Court, which is elected, has recently changed so it is difficult to predict how the new court will rule on the caps constitutionality issue.”
Additional Blog Posts about Tort Reform and Related Issues:
III. Medical Malpractice Policy Analysis – An additional December 10, 2004 post on the HealthLawProf Blog highlights a medical malpractice policy analysis which appears on the National Conference of State Legislatures (NCSL) website. This background analysis summarizes the medical malpractice problem, the opposing positions of the health care community and the plaintiff attorneys, plus recent Congressional efforts to impose uniform federal standards on damage caps, attorney fees and statute of limitations. The NCSL opposes federal medical malpractice legislation that preempts state laws.
IV. “Medical Malpractice and the Insurance Underwriting Cycle” – A December 11, 2004 post on the HealthLawProf Blog features an abstract of an new essay by Tom Baker (the University of Connecticut School of Law) which appears in the Health Law and Policy Section of the SSRN Electronic Library. Professor Baker’s conclusions from “Medical Malpractice and the Insurance Underwriting Cycle” include:
A. “…recent dramatic increases in predicted medical malpractice losses are a result of the insurance cycle, not dramatic changes in medical malpractice claim payments.”
B. “…the [medical malpractice insurance] cycle is so severe because there is a relatively long period between the time that the premiums for a medical malpractice policy are paid and the time that losses under that policy can be known with certainty, and because there is more uncertainty regarding future medical malpractice losses than many other kinds of losses”
C. “…there are good reasons to believe that medical malpractice insurance crises lead medical providers to improve patient safety…”
V. “Judicial Hellholes” - Evan Schaeffer’s blog “Notes from the (Legal) Underground” includes a December 16, 2004 post entitled “ATRA's "Judicial Hellholes 2004: Don't Be a Mindless Dupe”. The post disparages a recent report appearing on the American Tort Reform Association (ATRA) website naming Madison County and St. Clair County in Illinois as the nation's number one and number two "Judicial Hellholes" for 2004. Evan not only disputes the ATRA report but also provides links to several of his other posts addressing tort reform and highlighting the positive side of class action lawsuits.
“In the news: ‘As the national debate continues over "tort reform," states are considering the creation of medical malpractice courts to streamline litigation. The courts would likely eliminate juries and allow a judge with medical expertise to decide cases, possibly with the help of court-appointed experts. Proponents say medical malpractice courts could be more effective and cost-efficient, but opponents say the plan would take away the constitutional right of a trial by jury.’ Read full text. Source: Law.Com's Daily Legal Newswire, 16 December 2004 Copyright 2004 ALM Properties, Inc. All rights reserved."
VII. Malpractice Verdicts and Settlements – a December 1, 2004 post on “Beyond Structured Settlements” presents highlights from a November 30, 2004 front page article in the Wall Street Journal about malpractice verdicts and settlements.