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Tort reform?

30 Nov

What the heck is that? For that mater what is a tort? For a long time when I thought of tort I saw this pic in my mind:

But by the time I started paying much attention to news/politics, I realized that tort had a very different meaning (though the one above looks much more appetizing).  I then noticed that when most people hear the term tort reform they get a glazed look to their eyes and let their attention move on to the next article. Why is that? Because just like me they had/have no idea what the heck tort reform or even tort (except.. see photo above) is.

So a long time ago, just as I always do when I need to find answers, I googled and learned for myself.. but when I look around me I realize that many have that glazed look. I believe that the reason many don’t support tort reform is, as I said above, they honestly do not know what tort reform is.

Well, the time has come to do something about that.. I might not be the most intelligent person around, so I am going to try and make this easy to understand, if that’s possible.

 

What is a tort?

First and foremost, the luscious confection above is a tortE:

A torte is a cake made primarily with eggs, sugar, and ground nuts instead of flour. Variations may include bread crumbs as well as some flour.[1] Tortes are Central European in origin. The word torte is derived from the German word Torte (pronounced [ˈtoʀtə], which has a somewhat different meaning), which was derived from the Italian word torta, which was used to describe a round cake or bread. [1]

Source

Okay, all kidding and drooling aside..

Tort(s):

Torts are civil wrongs, as opposed to criminal offenses, for which there is a legal remedy for harm caused. Tort law is law created through judges (common law) and by legislatures (statutory law). The primary aim of tort law is to provide relief for the damages incurred and deter others from committing the same harms. A successful plaintiff  may recover loss of earnings capacity, pain and suffering, reasonable medical expenses, present and future expected losses, and other monetary relief for foreseeable harm suffered by the wrongful act.

Some of the types of torts include trespass, assault, battery, negligence, products liability, and intentional infliction of emotional distress. Torts fall into three general categories: intentional torts, negligent torts, and strict liability torts. Intentional torts are those wrongs which the defendant knew or should have known would occur through their actions or inactions. Some intentional torts may also be crimes, such as assault, battery, wrongful death, fraud, conversion, and trespass on property and form the basis for a lawsuit for damages by the injured party. Negligent torts occur when the defendant’s failure to use reasonable care cause harm.  Strict liability wrongs do not depend on the exercise of care by the defendant, but are established when a particular action causes damage.

Source

As with anything else in life when you have money and civil court you can have lots of abuse of the system. Anyone that has been through the disability process knows about the fees a lawyer asks for doing the job. Fortunately there is a stop gap there, they can only ask for up to a certain percent for their services. With many other civil cases, there is no ceiling on the fees they can charge.

Tort Abuse

“Class-action” lawsuits are intended to help a large group of individuals. They become a potent force when gathered in a “class” by lawyers who file suit on their behalf. Frequently, however, judges in cases ranging from unsafe trucks to fee-gouging banks approve deals that lack provisions to ensure injured consumers receive fair payments, says USA Today.

Recently, some judges have tried to ensure that claims are paid diligently by linking lawyers’ fees to the money consumers actually collect. Consider:

  • In a case in which music clubs had to provide discount coupons for CDs, a judge in Maine delayed granting about $850,000 in fees to lawyers last December to see how many coupons were used first.
  • Five months ago, a Maryland judge tossed out a $13-million-fee request, saying it was based on “phantom numbers.”
  • The case involving late fees on phone bills had settled for $51 million, but the actual payout to consumers was less than $200,000; the judge told the lawyers to renegotiate the settlement.

When a legal process set up to protect the public from corporate wrongdoing can be abused to ensure huge fees for lawyers and puny rewards for the injured parties, it undermines public confidence in the fairness of the judicial system, explains USA Today.

Source

Tort Reform:

Tort reform has recently become a controversial issue in the legal arena. Tort reform commonly refers to laws passed on a state-by-state basis which place limits or caps on the type or amount of damages that may be awarded in personal injury lawsuits. Those who advocate tort reform argue that limitations or caps need to be placed on damages able to be recovered in lawsuits because excessive damage awards create an oppressive tax on the cost of doing business. Advocates of tort reform attribute high costs of certain products or services to be due in part to litigation costs. Those opposed to tort reform argue that such cap or limits on damages are arbitrary and that damages need to be assessed on a case-by case basis because a blanket approach is unfair to severely injured plaintiffs. Opponents also argue that tort reform measures won’t prevent insurance rate hikes. Other issues raided in tort reform legislation include contingent fees, venue-shopping, certification of class actions, and other areas viewed as subject to abuses in the legal process.

Source

Medical Tort Reform?

Why have THAT? Well, never considered why when you go to the doctor or hospital it costs so much? They are definitely expensive on their own, but wouldn’t be nearly as bad as they are these days if they weren’t passing along the cost of many a frivolous law suit that they are taking care of in the form of attorney fees and malpractice insurance.

Several years ago when my children were born I had an interesting conversation with the nurse at my ob/gyn’s office. She was telling me the doctor was considering not delivering babies anymore, due to the high cost of the insurance he had to carry.

I was surprised at how high malpractice insurance can actually be. But sadly there are mothers that perhaps don’t take care of themselves when they are pregnant, or for what ever other natural reason.. they have a baby born with some kind of birth defect and turn around and sue the ob. Someone has to ‘pay’ for this child’s birth defect, right?. Insurance pays the mother, but raises the cost of the insurance to the doctor. The doctor in turn is forced to either raise his fees or quit delivering babies.

Health Reform’s Taboo Topic

Health-care reform is bogged down because none of the bills before Congress deals with the staggering waste of the current system, estimated to be $700 billion to $1 trillion annually. The waste flows from a culture of health care in which every incentive is to do more — that’s how doctors make money and that’s how they protect themselves from lawsuits.

Yet the congressional leadership has slammed the door on solutions to the one driver of waste that is relatively easy to fix: the erratic, expensive and time-consuming jury-by-jury malpractice system. Pilot projects could test whether this system should be replaced with expert health courts, but leaders who say they want to cut costs will not even consider them.

What are they scared of? The answer is inescapable — such expert courts might succeed and undercut the special interest of an influential lobby, the trial lawyers. An expeditious and reliable new system would compensate patients more quickly and at a fraction of the overhead of the current medical justice system, which spends nearly 60 cents of every dollar on lawyers’ fees and administrative costs.
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Even more compelling, expert health courts would eliminate the need for “defensive medicine,” thereby helping to save enough money for America to afford universal health coverage.

Defensive medicine — the practice of ordering tests and procedures that aren’t needed to protect a doctor from the remote possibility of a lawsuit — is ubiquitous. A 2005 survey in the Journal of the American Medical Association related that 93 percent of high-risk specialists in Pennsylvania admitted to the practice, and 83 percent of Massachusetts physicians did the same in a 2008 survey. The same Massachusetts survey showed that 25 percent of all imaging tests were ordered for defensive purposes, and 28 percent and 38 percent, respectively, of those surveyed admitted reducing the number of high-risk patients they saw and limiting the number of high-risk procedures or services they performed.

Source

It’s past time to take a good long look at tort (quit looking at the torte!) reform. Sure everyone likes to think that one day they may have a lot of money. But this habit everyone has gotten into of suing left and right has got to stop. In many ways I think so much of it is tied into the fact that so many have a lack of personal responsibility, and that makes for a bad situation all the way around.

What is tort reform anyway?

ATRA: The American Tort Reform Association

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Posted by on November 30, 2009 in Uncategorized

 

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