The Two Sides of Tort Reform (I)

The current and continuing push for tort "reform" is motivated by a wish by some professions, especially in the health care field and large corporations to be protected from jury verdicts arising from careless, reckless or intentionally venal behavior.

Consider malpractice. First, a pharmacist parties late into the night and arrives at work suffering from blinding headaches, shaky hands and a generally sour attitude. He mistakenly fills a prescription calling for 40 mg tablets with ones of 400 mg. The patient/customer takes the incorrect medication and becomes gravely ill and, eventually, dies.

Second, an attorney retained by a group of homeowners to pursue a claim against a chemical company that has, intentionally or without any real concern, dumped toxic materials over the landscape, claiming proper disposal would have been too expensive. A number of children have developed cancer and will surely die. The attorney does nothing with the file because of inadvertence or ignorance and when he finally files suit the statute of limitations has expired and all claims for damages are for naught.

Third, a contractor adds an extra room to a home. Either to save money or because the actual employee doing the specific work on the roof was careless or incompetent, the roof is not securely installed. At the first storm, the roof flies off the extra room and all furniture in the room is severely damaged by water. Moreover, the roof lands in the yard next door, striking a child who suffers permanent injury.

Finally, because he rushed into the operating room, relying on the preparation work performed by normally careful staff, or because he had been on duty at the hospital for twenty hours without a rest or break, a doctor amputates the wrong leg or, exhausted from consecutive days and evenings "on call", makes another gross error that causes substantial injury.

Is there anyone who would deny the injured compensation for the loss? Yet, of the examples given, only the physician has limits on the compensation and is protected by numerous conditions precedent to suit.

In other situations, not including negligence, tort law provides an allocation of losses among those injured and those whose actions caused the loss.

A pharmaceutical company has developed a new drug that promises abundant profit and has done the requisite required testing. In addition, the company had completed additional testing and discovered adverse effects from the drug in a small but significant sample. Since the drug has been approved by the FDA, the company promotes it to physicians for prenatal care or for patients with high blood pressure. Within the next year, a number of women who have taken the medication give birth to deformed children or seven people who have taken the drug have had a stroke. Examination of the children or stroke victims demonstrates a probable causal reaction from the drug.

An automobile manufacturer has information that the accelerator on one model has been sticking on occasion. The addition of a specific part, costing $50, would correct the suspected flaw. The additional production would cost millions of dollars and probably could not be added to the retail price without making the product less competitive. The company decides not to add the part. Within the next few years, there are a number of runaway acceleration incidents resulting in injury or death of owners of the vehicle or unrelated people who are just nearby.

An apartment management company's maintenance person knows or should have known that light bulbs are burned out in a busy parking lot. One night a resident or visitor trips on a speed bump and breaks his or her hip. Perhaps a mugger attacks a resident in the darkness and the victim is killed or injured.

Suits for damages in these instances serve two purposes. First, they compensate the injured for his or her economic loss and other consequences of the injury, including the pain that is endured. Second, the suit allocates the loss between those whose action or inaction was basically responsible and provides motivation to behave more responsibly in the future.

Thus Tort Law serves to compensate the injured and motivate better behavior

Unfortunately, free and ready access to the Courts has led to frivolous suits and additional burdens on businesses and individuals. These have been overstated as "urban legends" but they do exist. The second part of this article explores those flaws in the system.