Tort Reforms: The Key Aspects

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Table of Contents

Introduction
Tort reform is an issue of major concern
Advantages and disadvantages of tort reforms to the plaintiff and clinicians
A balanced system
Conclusion
References

Introduction

Tort reform refers to changes in common law. Tort reforms aim to reduce the tort compensation, which may be punitive at times. A tort is a civil wrong governed under the common law jurisdiction. Through tort, common law defines what legal injury entails and the plaintiff does have to undergo physical harm (Lunney & Oliphant, 2008). Scholars define it as personal injury. In this case, the violations by individual cause harm or loss to another person. Harm may be inflicted to an individual without necessarily contravening the legal stipulations. This amounts to a tort. The one who commits the tort is known as a tortfeasor. The tortfeasor has to compensate the victim for causing loss or harm.

The aggrieved party should be compensated for damages. The compensation is done commonly through monetary form meant to address the loss or damage caused to the victim. Tort requires the tortfeasor to pay damages usually in monetary terms to compensate for the damage caused to the victims. The damage caused could take different forms. This may include loss of income, medical expenses incurred, loss of future of expected cash flow streams, and payment for suffering and any pain endured. The main purpose of the law of tort is to indemnify the aggrieved party for proved harm. This has been exemplified in a Latin phrase quote “restitutio in integrum,” which means “restitution to original state.” Compensation is the sum of money that will restore the aggrieved party in a similar position as to when there was no injury suffered (Janice & Erika, 2012).

Tort reforms are a combination of ideas and law meant to amend the provisions of the common law. Thus, tort reforms have an impact on the civil justice system including both the court system and the citizens. Any malpractice in law can only be rectified through the establishment of new legislation. In the medical realm, tort reform seeks to attend to various issues. This includes defining the compensation that patients should get when clinicians are accused of negligence. Tort reforms seek to reduce the punitive damages that a physician may be required to pay as ordered by a judge (Peter, 2007).

Physicians and other practicing practitioners in the diverse medical field are required by law to have malpractice insurance. Through the tort reforms, there is capping or limiting of the damages that medical practitioners are required to pay as compensation. This will imply that the sums required for the malpractice insurance will be reduced substantially. In this case, if the medical malpractice insurer is aware that minimal sum will be requested after a malpractice, then the amount of insurance premium will reduce considerably. This makes the medical field be seen as significantly lucrative (Peter, 1997).

On the other hand, scholars claim that while tort reforms are appropriate for practicing physicians, the reforms are not fair as the physicians will not be fully responsible for their errors. This will make it very difficult for patients to win lawsuits against medical malpractice in courts. The law also seeks to enforce ethics on lawyers. This is achieved by limiting the amount of fees an attorney can charge. The attorney is limited to the amount of fees that a patient can be charged based on the amount that is to be compensated (Peter, 2007).

In totality, the tort reform helps to eradicate some ambitious malpractices. Thus, this ensures that only the legitimate cases of malpractice or negligence are pursued in a court of law. Tort reforms are a favorable issue to the practicing clinicians. Though this may be the case, some people feel that it is not fair for practitioners to make mistakes and not be responsible for their activities. When individuals are made responsible for their actions, they tend to be careful. In the case of the tort reforms, the idea is to reduce the charges on malpractice insurance in order to make the medicine field significantly lucrative (Kinney, 2002).

The two arguments are right and hold considerable weight. In states where there are stringent laws on the clinician’s malpractice and negligence, defensive medicine is seen to thrive. In this case, majority of practicing doctors would rather avoid tackling a given specialty in the medical sphere such as neurology or obstetrics. This is in an attempt to avoid the punitive legal charges that come with such medical activities. On the other hand, lack of charging the malpractice premiums will lead to an increase in negligence and malpractice cases. Patients will be compensated insignificant amounts from injury incurred due to the doctor’s faulty behavior. The total cost of the malpractice cost will include both the cost of insurance premiums and the cost of defensive medicine. The increased cost incurred because of a tort has led to an increase in the unpredictability of the practicing clinicians. However, empirical data confirm that there is benefit accruing from a sensible tort (Kinney, 2002).

A study conducted by Stamford University analyzed the perceived benefits owing to the tort liability reforms. The findings were that there was a significant enhancement in the economic performance where productivity increased and employment relations improved. The tort reforms had a considerable impact on the state. The study emphasized on the tenet that reforms to reduce the tort liabilities enhance the country’s economy while the opposite still holds.

Tort reform is an issue of major concern

Medical malpractice reform is an issue of concern mainly because of the nature of the profession. The doctors and physicians practice in an environment where malpractice or negligence would result to serious injury or damage. This aspect has been in existence for long, but taking the doctors to court is something that has just been adopted in the recent past. Over the years, the doctors’ actions have also been faced with an increase in the legal implications. The increase has been attributed to high attorney related costs and the emergence of experts in the medical field who are willing to testify against doctors. In general, misconduct premiums only cover an insignificant ration of expenses incurred by doctors. Even for those doctors who indulge in the high risk areas of health care specialty, their discomfort arises from the fact that legal action could still be taken against them even where there is no negligence on their part (Donald, David, & Roger, 2005). In the medical community, this discomfort was the main reason that led to tort reforms during the Bush administration (Richard, 2003).

The tort reforms are perceived by many to be a move that threatens public safety. Critics to the legislation argue that the move will enable the wrong doers to go unpunished by giving them immunity and a safe haven. However, in the midst of all these valid arguments, a balanced system will be desired. This system aims to enhance public safety, punish the wrong doers for their negligence, and dictate that all clinicians should respect their duty of care and be responsible for their actions. It is considered a failed system when there is a scenario where the citizen’s tort liability ceases to be based on fault, but rather on the insurance that one has. Therefore, tort reforms should be prepared in a way that sensibility is vivid. In this regard, the views and interests of all stakeholders in question will be noted and taken into consideration (Kinney, 2002).

Advantages and disadvantages of tort reforms to the plaintiff and clinicians

Tort reforms are deemed to allow patients to get the much-needed medical care. This gives the patients a chance to get compensation for services rendered in due time, as opposed to having to wait for years for the claim to be finally successful. Tort reforms also seek to save the taxpayer’s money that would have been used to pay for the ever-rising court running costs. The costs are incurred in a bid to enquire the actual fault in each case and try to evaluate the one to bear the burden of care (Janice & Erika, 2012).

Today, it is a common scenario in courts for lawyers and attorneys to take home a considerable amount resulting from the compensation given to their clients. This is due to the exorbitant fees charged for their legal services. In most instances, the legal fee is normally a percentage of the amounts awarded from the compensation. According to the tort reforms, the lawyers’ charges are subject to limits. This is meant to protect the sole interest of the patient. Thus, the plaintiff gets a significant amount from the compensation denying the attorneys their heavy charges, as was the case before the tort reforms (Peter, 1997). The court process bars the poor and the less fortunate in the society. In a bid to remedy the situation, tort reforms allow compensation to all patients across the board. This is in accordance with the common law tenets on equity (Lunney & Oliphant, 2008).

There is also a burden of showing or proving that a party was negligent. This is achieved by following the criterion on common law that specifies how negligence is to be handled. It stipulates that for an individual to be compensated, the various aspects should be proved. These aspects include the existence of a legal duty of care, breach of legal duty causes damage to the plaintiff, and actions are treated as possible cause of the injury (Ruschmann and Marzilli, 2006).

The legal jargon contained in the stipulations may be difficult for some people to comprehend. Tort reforms aim to ensure that the burden of proof is elevated from the plaintiff. This will make it easy for even those individuals who are not aware on how to prove the liability for the wrongdoer’s negligence. This will help individuals to avoid the legal technicalities and still get the required compensation (Richard, 2003).

The tort reforms also lure a significant number of individuals to practice in the challenging medical field. For many, the field of medicine is considered to be challenging in itself. The punitive charges levied in case of malpractice or negligence does not help the situation. Tort reforms have thus cured the approach of defensive medicine. Defensive medicine refers to a scenario where clinicians avoid certain areas of specialty such as neurology. The insurance costs are also exorbitantly high, and many people cannot afford it. This is an important query that the tort reforms seek to address (Kinney, 2002).

However, it seems unfair to reduce the amount an innocent patient should receive. If a patient becomes a victim of negligence or any other malpractice, it is only reasonable for such a patient to be compensated. This views tort reforms as a means to add salt to injury. In this case, a patient who has been attended to negligently hence suffering harm is offered peanuts as compensation by the justice system. Critics view the legal reform as a means to encourage negligence from the experts or clinicians (Donald, David, & Roger, 2005).

A balanced system

However, in the midst of all these arguments, a balanced system is the most appropriate. This is a system of compromise. The ideal situation is yet to be implemented. The system should seek to consider both parties. The initial purpose of the tory reform was to eliminate unnecessary practices and defensive medical tendencies from clinical experts. As noble as this may sound, the limits placed on noneconomic damages that should be paid to the beneficiary should be reasonable (Richard, 2003).

The balanced system aims at satisfying both ends. In this case, if a reasonable amount of money is paid to the patient, health care will be quite affordable to the patient. This amount will not be very exorbitant to result to defensive medical practices. However, the amount should be enough to deter medical practitioners from malpractices and acts of negligence. The state lawmakers should change the current legal procedure to prevent punitive damages and make liability insurance more affordable. Nonetheless, the balanced tort reforms are met by some tough challenges. For instance, trying to determine whether a medical act is caused by negligence or utter fate is still difficult. In addition, for a patient to bear the legal burden of proof would be unrealistic. Many patients and individuals at large are not conversant with law and thus it may be quite challenging to handle such issues. As the debate about the tort reforms continues, the balanced case scenario remains to be an ideal situation (Donald, David, & Roger, 2005).

Conclusion

Tort reforms proposed legal changes in the civil justice system. It mainly aims at reducing the litigations that are to be paid as damages emanating from breach of legal duty. A tort is a system that aims to compensate for harm or wrongs done by one person against the other. Tort reform is a pertinent issue in the healthcare industry. Tort reform is bound to attract quality practitioners in the field. In this regard, the reform creates a conducive and physician-friendly environment. When comparing states that have enacted the reforms, there is a huge discrepancy in the amounts of premiums required by the malpractice insurance bodies. However, a balanced system seeks to attend to the issues of all parties. It seeks to indemnify the patients by compensating for the negligent acts committed. The balanced system also aims at maintaining the liability insurance at a manageable level. As the tort reforms debate continues, the balanced system will remain as the ideal situation. Tort reforms mainly focus on reducing the litigations on compensating for damages.

References

Donald, H., David, C., & Roger, H. (2005). Remedies in contract and tort. New York: Cambridge University press.

Janice, R., & Erika, R. (2012). Feminist perspective on tort law. New York: Glass house.

Kinney, E.D.A. (2002). Protecting American health care consumers. Durham: Duke University Press.

Lunney, M., & Oliphant, K. (2008).Tort law. New York: Oxford university press.

Peter, C. (1997). The anatomy of tort law. New York: Hart publishing.

Peter, C. (2007). Accidents, compensation, and the law. Australia: University of Queensland press.

Richard, W. (2003). Courtroom Psychology and Trial Advocacy. New York: American Lawyer Media.

Ruschmann, P., & Marzilli, A. (2006). Tort reform. Philadelphia: Chelsea House Publishers.

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