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What is Tort Reform?

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.

So, What Is A Tort?

OK, so now that I’ve somewhat dealt with the legal technobabble (which I’m sure has left you as confused as I was when I first heard it in law school), what is a tort?

As it so often happens in life, I find it easier to explain what a tort is through an example:

You or a loved one have surgery to correct a digestive disorder and the surgeon leaves a large sponge inside your body. The sponge festers, making you agonize for months before it is discovered and removed (in another painful surgery) together with a portion of your intestines damaged by the dead tissue left behind.

The surgeon’s negligent act, i.e., leaving a sponge inside your body, gives you a cause of action for medical malpractice, one of the kinds of negligent tort actions mentioned before. Consequently, you may be entitled to money damages.

Tort Reform

Yet, you will need to win in court before you can recover money to pay for medical expenses, lost wages and other damages. An important part of winning in court will be proving that the doctor was negligent…And that’s where tort reform will hit you and every other citizen in Florida very hard.

In many States, including Florida, the State legislatures have sought to limit people’s ability to seek redress in medical malpractice cases. For example, a new law passed by the Florida legislature establishes that from October 1, 2011 on, out of state medical experts used by malpractice plaintiffs to prove their cases must obtain a certificate from the State’s medical board which will then allow the board to discipline them if it does not like their testimony…Why would a medical expert witness subject him or herself to such an inquisition? The simple answer, most will not and thereby cause deserving, injured people to lose hope of ever getting justice.

More importantly, why would “our” representatives pass a law that so clearly takes away one of the most effective ways to make sure these negligence cases are kept to a minimal? The medical industry is a very important campaign contributor to “our” representatives and it claims that “frivolous” lawsuits make doctors and hospitals spend inordinate amounts of money in malpractice insurance premiums, moneys (they claim) would be best spent in providing better health care or on medical research. The problem is that the kind of limiting legislation sought is typically used as a blanket that stops medical malpractice lawsuits, like the one in the preceding example.

In reality, no plaintiff’s lawyer could afford to file a so called “frivolous” lawsuit because of the high out-of-pocket expenses involved. Screaming “frivolous lawsuit” is just a way to distract the voters from the true goal: increasing insurance company’s profits and keep doctors and hospitals donating to political candidates for protection from their mistakes. Who will pay for these “medical mistakes”? You, me and everyone else in Florida (and the country) will pay when those injured by medical malpractice have no choice but to seek public aid and assistance to pay for what the responsible party should be paying.

Moreover, there is ample research to show that moneys saved on premiums are rarely, if ever, invested in better medical care or research. More likely than not, such monies will go to engross the company’s coffers and to show the shareholders a better quarterly statement. Texas, and the reforms passed in that State under former President Bush, are a perfect example of how medical costs have increased at a rate faster than in States where there are no caps or limitations on medical malpractice claims.

What can we do about it? Contact (call, write, e-mail, speak with…) our representatives and make sure they understand how upset we are with their work and what the consequences will be come election day.

In coming posts I will talk about other areas of tort law that are being “reformed”….In the meantime, I invite you to watch the new HBO documentary “Hot Coffee”…. It is initially based on the case of an elderly lady that sued McDonald’s after burning herself with scalding hot coffee accidentally spilled on her lap due to a defective cup lid. However, it goes on to distinguish the truth of what happened from the myth that “tort reformers” have made many Americans believe happened. The documentary explores the broader issue of big business’ action to promote legislative change in tort law, including medical malpractice, our judiciary and other important social issues.

If you or a loved one has been the victim of negligence, you should immediately contact a law firm experienced in handling these cases. The Miami Dade County Medical Malpractice Law Offices of Greenberg, Stone & Urbano has throughout the years represented many clients involved in medical malpractice cases, traumatic brain injuries and serious personal injuries. Visit our website to learn more about our firm and contact us today for a free consultation.

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