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WHEN TO REFORM TORT REFORM

by Sara B. Morgan, Esq.

Reform. A positive-sounding word connoting improvement and enhancement, Webster’s defines “reform” as “an amendment of what is defective, vicious, corrupt, or depraved; a removal or correction.” However, you can have too much of a good thing, and unfortunately, tort reform supporters don’t often realize the negative effect their efforts may have upon the lives of individuals who suffer from devastating, catastrophic injuries, until it is too late.

Take for example, the recent Delaware River incident where passengers of a small, touring duck boat were drown when a large barge literally ran over them. The actions and inactions of the duck boat crew, including stopping the boat mid-river for almost 12 minutes, failing to timely instruct the passengers to don life vests, and cell phone usage immediately preceding the crash, all constitute negligence which caused or contributed to the deaths and injuries of its passengers.

Enter the Limitation of Liability Act, codified at 46 U.S.C. 30503, enacted in 1851 to encourage competition between American shipping companies and foreign shipping companies. Many countries abroad, including in Europe, had similar laws in place which limit the liability of a ship owner for injuries to persons and property to the value of the ship and its cargo after it arrives back to port – as long as the owner of the vessel was not at fault for the accident.

But what is the value of a duck boat that’s been run over by a barge and dragged from the bottom of river? While no money could ever make the duck boat’s passengers and their families whole, it can certainly assist them in coping with those losses and otherwise treating those injuries. To limit any recovery in this matter to the value of the soggy, used-up duck boat is unconsciounable.

Similarly, California enacted the Medical Injury Compensation Reform Act, known as MICRA, in 1975 to combat concerns over the availability and rising price of medical malpractice insurance. This Act established a limitation, or cap, of $250,000 on the amount a person could recover for any pain, suffering, distress, anguish, and loss of quality of life in a medical malpractice case.

The theory was that MICRA would decrease the number of medical malpractice claims, as well as the costs of resolving those claims. It was further speculated that these savings would “trickle down” to consumers, resulting in lower or stabilized insurance coverage premiums and increased availability of medical services.

MICRA caps operate on half of all plaintiffs verdicts in California to reduce the award a jury determines necessary to compensate those plaintiffs for their losses. The end result was a reduction in costs – negligent health care professionals benefitted from a 30% reduction in liability. What is lacking is any evidence showing that patients benefitted from a similar reduction in medical malpractice. Even more disturbing, research has proven that the jury awards most likely to be capped under MICRA are those cases which resulted in death, in severe non-fatal injuries, and injuries to children younger than 1 year.

Clearly, there are inequities here, and unfortunately, reform itself can result in the type of defective, vicious, corrupt, or depraved practices which it was intended to eradicate.

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