Miami Personal Injury Lawyer Blog

In past posts we have talked about "reformers" trying (in many cases, succeeding) to dramatically change our tort law by imposing conditions on the use of expert witnesses (as done in Florida by a statute that requires out of state expert witnesses to obtain a "certificate" from the Medical Board), shortening the statutes of limitation and by imposing "caps" on damages. On this occasion we will talk about another method used to fool the public into accepting tort reform: greatly limiting awards for punitive damages or eliminating them altogether.

What Are Punitive Damages

Punitive damages (or exemplary damages, as they are sometimes called) are intended to punish and "make an example" of the wrongdoer or tortfeasor. In other words, they seek to stop others from incurring in the same wrongful actions and to express society's outrage at those wrongful acts.

Similarly, punitive damages may be awarded in cases where the court considers that compensatory damages are not an adequate remedy. For example, they may be awarded against an intoxicated driver for injuries or death he or she caused, i.e., to financially punish the drunk driver for his or her conduct. Also, punitive damages may be exceptionally awarded in contractual disputes: in insurance bad faith cases the insurance company's refusal to pay (despite being clearly obligated to do so) is considered a tort separate from the contractual dispute which entitles the plaintiff to damages beyond the value of the insurance policy.

Continue reading "What is Tort Reform? - Part III" »

In our last post on this subject we explained what is tort and briefly "touched" on tort reform as it refers to medical malpractice, specifically in the State of Florida. In this post we will talk about those who propose tort reform and the specific changes they are proposing (or already implementing) and some of their "convincing" arguments on why we need tort reform.

Who Wants Tort Reform And Why

Insurance companies, the medical industry and big business in general are among those that want to change the current tort system. Among the "reasons" they raise in support of why the system should be changed, they claim that the so called "frivolous" lawsuits increase the cost of litigation and compensation payouts, raising the cost of insurance because of how much money they have to spend in insurance premiums.

As we pointed out in the previous post, there are no such frivolous lawsuits in medical malpractice: these cases are so expensive to litigate (among other things because of the cost of hiring medical experts) that no plaintiffs' law firm would dare to pursue a case unless they were as certain as anyone can possibly hope to be of the validity of their client's injuries and the defendant's responsibility those injuries.

Also, as related to medical costs in this country, proponents of tort reform claim that frivolous lawsuits increase the cost of healthcare because of the amounts of money the medical industry has to spend in malpractice insurance premiums. However, according to Bloomberg Businessweek, tort reform would have no noticeable effect in this area. A study by the Congressional Budget Office shows that medical malpractice cases increase the cost of healthcare by only 1% to 2%.

Continue reading "What is Tort Reform? - Part II" »

Friends and family members often ask "hey, what's tort reform? Following I will attempt to answer this question about a legal topic that is more important to our society than most of us realize.

What Is A Tort?

However, before discussing tort reform I believe it is best to explain what we mean by "tort". Contrary to popular belief, the term tort (as used in the legal World) does not refer to a cake or other form of delicious pastry. It comes from English Common Law and it refers to the breach of a civil duty by an individual (or a corporation) to another person. Such civic duty is different from a contractual or an equitable duty: contractual duties are duties arising from an agreement reached by the parties. Equitable duties are those springing from rights a person may have.

While many wrongful acts amount to both torts and crimes, they are different: a tort is typically dealt with by the victim filing a lawsuit against the wrongdoer, who is known as the tortfeasor. A crime, on the other hand, is dealt with by the state prosecuting the accused. One more important difference: while the remedy for a crime is the sentencing of the accused to death or to a prison term, the remedy for a tortious act is typically money damages.

Finally, torts come from three different kinds of actions:

1. Negligent actions. Most lawsuits are based on negligence:

a. Car, motorcycle and truck accident cases;

b. Slip or trip and fall cases;

c. Medical malpractice cases;

d. Product liability or defective products cases;

e. Pharmacy error cases;

f. Negligent security cases;

g. Amusement park accident cases;

2. Intentional acts:

a. Assault;

b. Battery;

c. False Imprisonment;

d. Intentional Infliction of Emotional Distress;

e. Fraud.

3. Quasi-torts or liability torts. These can be categorized as statutory violations. Among others they include:

a. Violation of consumer protection laws;

b. Worker's compensation cases;

c. Violations of anti-discrimination laws.

For the purposes of this post, we will only deal with torts caused by negligent acts.

Continue reading "What is Tort Reform?" »