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Tort reform results in two justice systems

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Are there two justice systems in Ohio? Regrettably, yes. Because of tort reform, there’s one for businesses and doctors and another for those occasionally injured at the hands of either.

Before going any further, let me explain something important. The purpose of this post is not to be critical of businesses or doctors. The purpose is to illustrate disparities in the justice system.

The distinction between the systems was highlighted in an Ohio Supreme Court decision in December. The case concerned a 15-year old girl, Jessica Simpkins, who had been forced by her pastor to engage in oral sex, was raped and suffers PTSD and depression as a result. Though the jury awarded Jessica $3.5 million for these non-economic damages, the verdict was reduced to $350,000 because of S.B. 80, passed in 2005, that places limits on damage awards.

Those limits do not apply for permanent physical injuries. The supreme court was asked to determine if it was constitutional for S.B. 80 to treat catastrophic physical injuries differently from Jessica’s catastrophic nonphysical injuries. The court held it was, meaning rapists benefit from tort reform as well.

S.B. 80 was designed to create “a fair, predictable system of civil justice.” The Ohio General Assembly’s statement of findings and intent within S.B. 80 illustrates how one-sided the assembly’s concerns were. Civil litigation was characterized as “a challenge to the economy.” A poll of corporate attorneys was cited as evidence that a state’s litigation environment could affect decisions as to where to do business. Supposedly, states that have adopted tort reform have experienced employment growth.

How much was said in the General Assembly’s findings about the expected impact of tort reform on those who are injured? Not a word.

Two years earlier, the Ohio legislature passed a similar statute concerning medical malpractice. Nationwide, reform proponents complained of too many suits being filed that caused malpractice insurance premiums to soar.

Reform for both personal injury and medical malpractice has been a zero-sum game. Greater value is placed on the interests of businesses and doctors than on those who are injured.

Tort reform is actually claim suppression more than anything else and is a nationwide trend.

For years, the Ohio Supreme Court rebuffed as unconstitutional the General Assembly’s many attempts to reform the tort system, but with a change in its composition, the court did an about face and approved S.B. 80 in 2007 and again in December.

An analysis of medical malpractice reform nationwide by law school professors Scott DeVito and Andew W. Jurs in 2014 found two negative consequences. The first is that fewer claims are filed. It’s not unusual in medical malpractice cases for plaintiffs’ attorney, who are generally paid a percentage of the verdict, to spend $50,000 for expert witnesses and related costs. With limits on damages, many cases that have merit are not economical to prosecute.

The second problem is that injured parties are not fully compensated. No matter how significant one’s injuries, statutory caps preempt a jury’s determination.

DeVito and Jurs concluded that while medical malpractice reform was intended to reduce defensive medicine and attract more health care providers, “empirical evidence now demonstrates … the only clear effect has been to lower insurance payouts.” The positive impacts of tort reform “have been significantly oversold,” while the effects “disproportionately impact certain vulnerable citizens.”

Research done by Aaron Carrol, M.D., of the Indiana University of Medicine, shows that medical malpractice reform has not always resulted in lower premiums because insurance companies do not pass on the savings. He believes too few malpractice cases are brought to light and too many nuisance cases are filed and that malpractice reform addresses neither issue.

The Congressional Budget Office reported in 2009 that the savings attributed to medical malpractice reform could be reduced by about ten percent if reform were adopted nationwide. But what about the impact on people? The CBO reported there is less evidence about the effect of tort reform on people’s health because “many malpractice studies have not examined health outcomes.” For this reason, “the effects of tort reform on health outcomes is much more mixed.”

Why do businesses and doctors fare better than injured people. Likely, it’s because of perception and access. Legislators are swayed by the occasional exceptional lawsuit that grabs headlines and suggests a system of “jackpot justice.” The business and medical community have well-funded lobbying efforts behind them. The only groups advocating on behalf of the injured are plaintiffs’ lawyers and their associations, and they’re viewed as part of the problem.

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Jack D’Aurora writes for Considerthisbyjd.com

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Also published on Medium.

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Discussion

  1. Dave H  January 30, 2017

    Jack, your comments cause one to take pause as they are substantially poignant. Not having sufficient information or experience directly with the gist of your comments, I might, however, point out one factor. I believe the plaintiffs’ attorneys have brought on the problem issue themselves. How? By pushing with rabid fervor meaningless class action lawsuits. I have been the “beneficiary” of countless class actions. All of these, when settled or adjudicated in favor of the plaintiff have afforded me countless major and substantial awards (NOT!). I have been given three months of premium TV channels (where to continue I have to pay the normal monthly premium), have a $15 credit with Barnes & Noble for some indiscernible harm I received, and at least a hundred securities settlements where if I spend countless hours documenting my so-called “claim” I might get five or ten dollars.

    Who wins these cases? Obviously the lawyers. And people hate this process. Hate it enough to brow-beat their elected representatives to stop that madness. Hence tort reform, which probably does not touch class actions anyway. Most countries do not have class action status and some have a kind of try one or two cases and apply the results to the many (Volkswagen in Germany). Which is best? I have no idea, but I do know that class actions are a total waste of money for Americans in general and a huge waste of valuable court time.

    Class actions may have had a valid genesis, but the process has corrupted and the public wants it changed. Maybe tort reform was not the answer, but huge awards to plaintiffs’ attorneys is not either.

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    • jdaurora@behallaw.com  January 30, 2017

      I feel your pain, Dave. I’ve been included in a couple class actions. In one involving term insurance policies, all I received was a new disclosure for my policy, while the attorneys who brought the case got real cash–and lots of it, if I recall.

      Still, class actions are a completely separate issue from the statutes that impose damage caps. You’re upset about class action attorneys cashing in on legal actions that provide little benefit to the members of the class. I’m upset that, because of damage caps, some meritorious cases become uneconomical to prosecute, and injured parties are not adequately compensated. Glad to see you’re still following my blog.

      It’s bad policy to confuse these issues.

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  2. Matt  January 30, 2017

    Jack: I largely agree with the point of your article, and, I would add that I trust juries more than I trust legislatures.

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    • jdaurora@behallaw.com  January 30, 2017

      Amen!

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  3. Fil L.  January 30, 2017

    I agree with Dave H. and would have said the same thing, since I have had the same experiences, had I been intelligent enough to say it.

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  4. John  January 30, 2017

    Jack, you are correct! My wife died because she was exposed to asbestos in a Columbus Public School (and radon). Tort reform is shielding the government who has known that the building built in 1909 was built with bricks made with asbestos, plater walls of asbestos, pipes covered in asbestos, floors and ceilings made with asbestos. Can not sue them in open court because government is King! I think of all the kids who went thru their and who might of died already and those who have internal time bombs! All to save $ rather than do the honest thing!

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  5. Jim Meaney  February 3, 2017

    Here is the essence – “The business and medical community have well-funded lobbying efforts behind them.” Follow the $$$ on both sides — and the injured will always be screwed,

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