This article discusses tort reform in the United States in the context of medical malpractice law. “Tort reform” (sometimes called “civil justice reform”) is a political buzzword that describes ongoing efforts throughout the country to revise the laws governing civil lawsuits. In the past ten years, the tort reform movement has enjoyed considerable success in the field of medical malpractice, and the key conflict in this field has been that of “noneconomic damages.”
(1) What Is Tort Law?
The American legal system is divided into two broad fields: criminal law and civil law. All three layers of American government (federal, state, and local) have their own distinct bodies of criminal and civil law. Criminal law defines the minimum standards of acceptable behavior for each person present within (or otherwise subject to) the jurisdiction of a particular government. Persons who fail to adhere to these standards are subject to criminal charges and punishment including fines, imprisonment, or (in some circumstances) death.
Civil law, by contrast, describes the circumstances under which one person within (or otherwise subject to) a jurisdiction is obligated to compensate another person for inflicting injury or property damage upon him or her, whether intentionally or accidentally. With the exception of “punitive damages” (which are only at issue in a small minority of cases), the goals of civil law are compensation and the avoidance of further harm, rather than punishment of the defendant. A person found liable in a civil proceeding might be ordered to pay a certain amount of money in “damages” and/ or to refrain from engaging in some undesirable act.
“Tort law” is a historical term borrowed from the common law of England. “Torts” are specific types of allegations that an injured party might bring against one or more other parties that are alleged to be responsible for the injury. Example torts include “negligence,” “assault,” “battery,” “trespass,” “conversion,” “slander,” “libel,” and “invasion of privacy.”
(2) What Is Medical Malpractice?
Medical malpractice is a type of negligence claim. Every doctor has a legal obligation to provide his or her patients with at least a minimal level of care (as defined by the general opinion of the physicians in the community). Other licensed professionals, such as lawyers and certified public accountants, have the same obligation. When a professional fails in this duty, he or she is obligated to compensate the victim for any losses inflicted.
(3) What Are Noneconomic Damages?
When found liable for a tort claim, a person is typically ordered to pay monetary damages to the injured party. How much money is appropriate? Until quite recently, the general rule was that the defendant was obligated to pay for 100% of the physical injuries, emotional injuries, property damage, etc. inflicted. Put another way, the defendant was obligated to make the victim “whole.” These types of damages are called “compensatory” damages.
Compensatory damages come in two types: “Special” damages are awarded to compensate specific, measurable expenses such as property repair costs, lost wages, and medical bills; “General” damages are awarded to compensate for intangible losses such as pain and suffering, emotional distress, humiliation, and injury to reputation. General damages are also sometimes called “noneconomic” damages.
Because there is no objective way to measure the value of general damages, the jury generally has the authority to award whatever amount it deems appropriate under the circumstances. Furthermore, the trial judge generally has the authority to modify the jury’s award where the jury’s award, compared with similar cases, is excessively large.
(4) What are Noneconomic Damages Caps?
In recent years, the tort reform movement has argued that fixed “caps” or limits should be placed on awards of general damages. Two of the leading organizations that support tort reform are the U.S. Chamber of Commerce (www.uschamber.com) and the American Tort Reform Association (ATRA) (www.atra.org). ATRA, for example, supports a flat limit of $250,000 on noneconomic damages awards in all circumstances.
The tort reform movement has been most successful in capping noneconomic damages awards in medical malpractice cases. According to ATRA, 22 states (CA, CO, GA, IL, IN, LA, MA, MI, MN, MO, MT, NV, NM, ND, OH, OK, SC, SD, TX, UT, VA, and WV) presently cap noneconomic damages in medical liability cases. Furthermore, an additional 12 states (AL, AK, FL, HI, ID, KS, MD, MN, MS, OH, TX, WI) cap noneconomic damages in some or all tort cases other than, or in addition to, medical liability cases. Iowa and Maine also limit noneconomic damages in certain narrow circumstances. Only one state, Kansas, has adopted ATRA’s suggested $250,000 universal cap.
The drive for noneconomic damages caps in medical malpractice cases has enjoyed success in large part due to a period of several years of extremely high medical liability insurance premiums. Doctors and liability insurers persuaded several state legislatures that the premiums would drop substantially if general damages were capped. Whether this prediction proved true is debatable. One of the leading organizations opposed to tort reform, the American Organization for Justice (www.justice.org), has amassed considerable evidence that the size of noneconomic damages awards has very little to do with the size of medical liability insurance premiums.
(5) Are Noneconomic Damages Caps Justifiable?
Noneconomic damages caps violate the fundamental principle that the defendant is obligated to make the victim whole. If, for example, a jury awards $400,000 in general damages to an innocent victim, but a $250,000 cap applies, then the cap will cheat the victim out of $150,000 in deserved compensation.
Proponents of caps argue that jury awards of general damages are fundamentally arbitrary because there’s no objective way to convert someone’s pain and suffering to a dollar amount. Furthermore, juries are subject to being carried away by emotion and to rendering outrageously large awards. Therefore, it is not unfair for a legislature to set a modest outer limit to the amounts of such awards.
However, it is the legislative cap on damages that is truly arbitrary. Prior to awarding compensatory damages, a jury will hear all of the evidence relevant to a specific case as well as both sides’ arguments regarding the evidence. A legislative cap, on the other hand, is a crude, one-size-fits-all solution.
How did ATRA determine its preferred cap of $250,000 to begin with? Why not $100,000? Why not $500,000? Does ATRA really believe that $250,000 is an adequate award for all caseseven the most horrible? (Note that, as of 2009, the minimum player salary in Major League Baseball is $400,000 per year.)
The predominant tort reform proposal in medical malpractice today is the noneconomic damages cap, which, as of 2009, has been adopted by more than 22 states. Caps purportedly reduce the cost of medical liability insurance premiums for physicians practicing in the states where the caps apply, and the accuracy of that assertion is hotly debated. Regardless of the effect that caps have on insurance premiums, however, caps unfairly place the entire burden of tort reform on the backs of innocent victims by depriving them of the longstanding right to be made whole by those who have failed to provide them with adequate medical care.