I'm starting the discussion with a specific reference to the tort reform proposed by the Bush administration in the USA, but there's a reason why I'm not making a poll of this thread and often diggressing into more general concepts. Feel free to speak in abstract terms, removed from the reality of any specific country, or to choose your own country or any given country as your reference. The problem of what we should do with torts in general is also worth considering.

However, on to Bush's tort reform. Obviously, the are going to be advantages and disadvantages. Also obviously, there's more to it than just torts.

First, we need to know that Bush and his administration are republicans. Next, we need to know that almost all lawyers support democrats. Of 112 million dollar ATLA gave for the 2004 electoral campaign, 95% went to Kerry and Edwards. The democrats enrol judges on their voting lists, while up to 60% of the sum awarded by the court ends up in the lawyers' pockets. Judges award the fat sums, plaintiffs get something, lawyers grab their share and the party collects the tithe and everyone is happy. On the democrat side, of course.

One of the instruments serving to make the sums so large is punitive damages. This construct is unique to common law and is almost altogether absent in the continental system of entirely legislated law, even though it occured in Roman law and mediaeval laws.

When it comes to big corporations, there is a belief that the actual compensational damages will not meet the purpose and the corporate giant will shrug and shake off easily. However, in actuality, punitive damages are awarded not only in suits against wealthy companies, but also against individuals, for example when a degree of malice can be proven.

This alone creates a basic structural problem: lawsuits are supposed to belong within the private, civil law. This is the reason why, for example, one doesn't go to prison for a tort, or generally a civil wrong. Private law is supposed not to involve the state per se in any other role than the arbiter and enforcer of the settlement. Punitive damages clearly serve a public function in practice no different from a penal fine. Those punitive damages often exceed the actual compensation several times.

It must be noted that those punitive damages, despite their public nature, don't go to the state treasury. They are awarded to the plaintiff, which means the lawyer ultimately gets up to 60% of it.

The extension of liability compared to past standards meets with ardent opposition of the proponents of the tort reform. It is brought up that while the plaintiff would have to prove complete lack of negligence on his part in order to be able to recover damages, now extensive levels of negligence are acceptable, such as in the Stella Liebeck case (she won money from MacDonalds after spilling coffee and burning herself). Obese people sue fast food networks, smokers sue the nicotine business, examples are many.

It can be said that there is a whole new lawsuit industry and a growing one, with the number of lawyers increasing at a quicker rate than the number of the population.

The opponents of the "lawsuit culture" raise that it stalls business, enables lawyers to prey on businesses which are supposed to run the economy and negligent plaintiffs not only to avoid the consequences of their carelessness or even willing stupidity, but to profit from it.

However, the other side of the problem is that the tort reform is intended to come along with a 250 thousand dollar limit on damages, compensation and punitive together, claimed from a company. The fairness of this move is questionnable as it is perfectly clear that the actual loss on the part of the plaintiff will in many cases exceed this amount. We aren't speaking solely about abstract losses derived from induced discomfort, but often about "tangible" material losses.

Also, it allows companies to profit from their wrongdoing as, basically, anything above the 250 thousand cap is lost. At that point it doesn't matter how big the actual loss is and one million or twenty million makes no difference.

Some of the bad effects could be avoided by suing individuals directly responsible for the company's decisions. However, it is the company which profits from those decisions, which are also made in its name, which makes it obviously unfair to shield the company from accountability for said decisions.

The cap appears strikingly unjust especially in medical malpractice cases. Someone who suffers permanent injury as a result of malpractice is not going to recover from the less or offset it with 250 thousand. This actually bars the plaintiff even from demanding the wrong to be righted if the injury can be reverted by a surgery exceeding 250 thousand in price.

The regulation is clearly not a matter of justice, but a matter of interests. In this case, the interests of the companies or even the generalised conomic interest prevails over justice and the right to have wrongs redressed. As such, it also violates the principle of equality, placing one group above another group in an extremely ostensible way, and even above the law itself.

While I still remain an opponent rather than an enthusiast of the lawsuit culture and I believe it's already been high time for a tort reform, I can't support this tort reform.

The problem is not with the sums awarded being high. The problem is with the sums being higher than compensation required. I believe in full restitution and compensation. The inflicted loss as well as the lost profit. Some compensation is even due for physical, or even mental discomfort, although in this case I would advocate non-monetary compensation, if possible.

It can be debated whether an average wage earner should be required to give most of his earnings over to a millionnaire artist or sportsman whom he has negligently incapacitated from making more millions but not from normal functionning, but no one should be required to bear with his loss for the sake of the tort perpetrator company's economic interest.

In the context of the tort reform, the idea of compulsory insurance pops up and I believe it's a good idea. Companies should be obligated to purchase liability insurance as should be people in self-employment. It wouldn't hurt to have insurance that covers everything you can face in life, so that both the victim immediately receives compensation from his own insurance and the negligent perpetrator can draw on his insurance rather than be pushed into poverty. Malice, of course, is people's own problem.

We could argue that, for the sake of their freedom, people should be allowed to elect not to have insurance, but if they actually commit a tort through negligence, the money won't grow on a tree and surely not overnight. That's why I believe there should be compulsory insurance covering torts. For average citizens perhaps not a specialised tort insurance like for doctors, lawyers, teachers and others, but nonetheless something which will still cover torts. And results thereof, if they happen to find themselves on the receiving end.

Interestingly, in my own country (Poland), we have something opposite to the US lawsuit problem. Basically, our system practically doesn't recognise punitive damages and judges more often than not fail to effect full compensation, except maybe when big business actually is the plaintiff. As well as insane sums, you can have the problem of ridiculously small sums. Neither is good. That's why I think the insurance variant would be the best way.

You could ask if I have an alternative for punitive damages. Yes, I seem to have one. They should be regular fines and should belong to criminal courts. The only instance when the victim of a tort should get more damages because of malice on the perpetrator's part is when said malice increases the loss (i.e. if the knowledge of the fact that the perpetrator acted maliciously increases the suffering of the victim). Not as means of punishment.

[ February 11, 2005, 23:30: Message edited by: chevalier ]

King George's tort "reform" is nothing more than a pay-off to the corporate fat cats who supported him. He has also has tied this to healthcare "reform"; another pay-off to the big insurance companies. Trial by Jury is a basic right, included in the orginal Bill of Rights.

This is nothing more than a bogus attempt to deny people who have been wronged their "day in court." The whole "tort reform" concept with the Bushies is both wholly dispicable and void of civic virtue. It is George II at his bottom-of-the-barrel, mean spirited, nastiest towards those who need the most protection from corporate incompetence and abuse.

Edit - This issue is political, and is certainly a hot-button for many Americans on both sides of this incediary issue. It should probably be in Sighs, rather than here...

[ February 12, 2005, 06:39: Message edited by: Chandos the Red ]

Yes...and putting limits for damages that plaintiffs can collect for certain cases hurts the common man? Chandos, I'm surprised at you...all of us in America suffer through calculated and minimalized health care because doctors have to practice medicine from the standpoint of how much they could be sued for.

The rich fat cats in this case are the trial attorneys, who have grown fat off of the dollars that we all pay for health insurance. Every American will enjoy better health care if we employ torte reform to limit frivolous lawsuits that destroy the medical community for everyone.

P.S....trial attorneys are almost unanimously Democrats.

[edit - I agree...this belongs in AoLS...maybe someone with large enough biceps can come along an move it]

It's unanimous - politics it is and to the AoLS it goes.

HS - Plaintiffs' trial attorneys are almost all Democrats. The defense bar isn't.

[wonders why he coudn't move the thread]

So...dmc...are you against some kind of torte reform?

Chandos, I'm surprised at you...all of us in America suffer through calculated and minimalized health care because doctors have to practice medicine from the standpoint of how much they could be sued for.
You mean like an incompetent doctor who cuts off the wrong limb? If more of them knew how to provide healthcare instead of handcapping their golf games they wouldn't need so much insurance...gimme a break, HS.

Here in Sweden you cant sue anyone for sheit, for good and bad. It is quite amusing when some moron who has seen one too many American movies sues for something silly and demands a large damage payment only to be awarded with a couple of hundred bucks, if they are lucky. When it comes to companies doing stuff to harm people and the like it is the government who gets the money in the form of fines and not individuals. This means that we dont have a storm of lawsuits from greedy people but it also means that the person wronged does not get any damages to talk about if they win the case. I learnt when I studied business law that the immense damages awarded to people in the US from parties who wronged them are there to keep people from being wronged in the first part. That is laudable. This means that the entitites being sentenced to pay these immense sums must have done wrong in the eye of the law, something they are not supposed to do. When it comes to doctors getting sued it must be the problem of the courts for judging to the favour of the patient and not the ability to sue in the first case. If you are grossly malpracticed you should have the oppurtinity to sue but if the doctor does a small and human mistake you shouldnt have anything coming to you. I think you need some new supreme court cases in the US to decide what goes and what doesnt go. If the surgeon saws off the wrong leg you should be able to sue and get mo' money mo' money but if the doctor fails to diagnose you properly when you suffer from a disease hard to diagnose you ought to be stuck with all the legal costs.

Punitive damages are ruining the country. As mentioned above health care costs are outrageous because of it. I have some clients that are OB/GYNs and their malpractice insurance is in excess of $100,000 per year. Here in MA some OB/GYNs have stopped delivering babies because of it and just work on the women's health side.

It is even having adverse effects on our culture. Even Mrs. Snook has more than once said "Do you think we can sue over this...." A concept that truly frightens me that people hope for a minor injury or damage and hope that it can turn into a big payday.

Now don't get me wrong damages for injuries should be equitable for the damages done. It is only the punitive part that I have a problem with. Using Chandos's doctor analogy the victim/courts in my opinion have a responsibility to go to the board of medecine and if someone is incompatant they should have their license revoked. In my profession (accounting) the two societies I belong to (the American and Massachusetts) both in their monthly newsletters list who has been terminated and for what reasons.

I completely agree with you, TGS. That would be way better than the current remedy, which is to sue the hell of the doctor/healthcare corporation. The problem is that the AMA is a "captured" agency. It is really there for the protection of the doctors, and the current system, rather than the patient.

We have a great doctor here in Houston, who treats cancer patients in a provocative manner. I can't remember his name. He treated a relative of mine. The AMA is completely after him most of the time. And the doctor has been in and out of trouble. But his treatment works. This relative of mine was told by a regular doctor he would need surgery, kimo, all that good stuff. But still it was only a matter of time before he was done for.

Anyway, another relative flew him to Houston, to see this other guy, who said he could save him. But the insurance company refused to pay anything, because of the AMA. Well, this other relative does very well, so he paid for the entire treatment out of his pocket. But now the cancer is gone, without surgery or kimo. And that has been 7 years ago. My point is that the AMA is really just another political, finacial agency that protects the industry and not the people it takes care of - the consumer, who needs to constantly beware.

Don't confuse the AMA with the state board or medecine. You are correct that the AMA is an organization created for the benefit of doctors. I'm in the AICPA with does the same thing for CPAs. However, it is the states that give people the power to practice medecine, law, accounting, architecture, etc. Yes, you may still run into the same political B.S. but when dealing with politicians the public at least has a way to deal with them.

Now as to what a health insurance policy will cover is an entirely different animal. The waste is truly horrific and everyone involved knows exactly how to milk the system. You can't get anyone to do anything quickly or easily. As an example many years I had a wart on my foot. I wanted to see a podiatrist. My primary care doctor said he wanted to see me before he would give me a referral. Then when I saw the podiatrist he said "Yes, it is wart. See my receptionist to schedule a visit to remove it." I had to make three trips (and pay three co-pays) for something I already knew.

What it all boils down to, is you have to know what your plan will cover. There are plans that cover alternative/experimental treatments. The problem is, everyone is at the mercy of what plan their employer picks.

Punitive damages arise in circumstances where the defendant acts in a manner that is fraudulent, oppressive or in willful violation of the rights of others. You are not going to find punitive damages in circumstances surrounding professional negligence like medical malpractice, you find them in areas where tobacco companies, knowing the harmful effects of their product, act to make them more harmful and addictive, all the while claiming that they are not harmful, etc. We are talking about intentional torts, not negligent ones.

Tort reform more often centers on the parts of the damages that are hard to quantify -- pain and suffering. That's what the cap aims at. Here in California, there's a law with the acronym MICRA (I forget what it stands for) that basically says that pain and suffering is capped at $250,000. It does not act to limit quantifiable damages such as medical expenses or economic losses like lost wages and income.

Thus, it's not easy to say whether one is for or against tort reform. For example, the prime purpose of punitive damages is not to enrich the harmed person, but to teach a lesson to the person or company that deliberately put that person in harm's way. They must reasonably relate both to the amount of actual damages suffered and to the relative wealth of the defendant. I think that, when used correctly, they are a valuable tool. I also think that there's no reason why the plaintiff needs all of the punitive damages. After all, the idea is that the bad actor harms society as a whole. Thus, I would have the punitive damages split between the state and the plaintiff.

Pain and suffering is another issue. How do you compensate someone who is going to be in constant pain for the rest of his or her life? How do you compensate someone who is permanently disfigured? How do you compensate someone who is in definite agony for a limited time period? Do you compensate someone for some or all of those things? To me, that's the heart of tort reform, because that's the area with the most latitude for jury abuse and that's what causes the big premiums in health and other insurance (that and the fact that the insurance companies make a huge profit and don't want that impacted by nasty little things like paying out on valid claims).

Fortunately, I do not practice in this area at all. I do relatively clean business disputes with rational people who are not looking for a get-rich-quick scenario but are usually looking for the benefit of their bargain or a way out of it.

I'm for some tort reform, but not to the level that the Republicans seem to want.