As an Orlando personal injury attorney, I sometimes answer questions online relating to personal injury and accident law. This is just a quickie article, which originally was a comment to this post, in which a concerned consumer, Kelline Pickett, had been asking me and another attorney, James Novak, about tort reform. Since my comment was fairly lengthy, I decided to share on my site. This should answer her question regarding whether corporations and insurance companies can promote their tort reform agenda based on “unproven statistics.” She also generally does not understand what a tort even is, nor how tort reform might hurt everyone. James Novak, a criminal defense attorney, explained that arbitrary limitations on damages, irrespective of actual damages, are one highly unfair aspect of tort reform, which is true. But there is so much more to the story.
What The Heck Is A Tort Anyway?
First, a tort is a type of legal claim, generally involving accidents and injuries. There are lots of complicated definitions of torts. But the simple way of explaining them is that they are a type of lawsuit. They are different from, say, a lawsuit based on a contract, or a lawsuit based on property rights. They are lawsuits essentially filed when someone harms someone else, someone whose connection to the injured person is that they harmed them. The “tortfeasor” (person who committed the harmful act) was generally negligent, which means they did not behave like a reasonable person or corporation, and someone suffered an injury as a result.
I have been explaining online, including during this web cam broadcast, that lawmakers in Florida and across the country have been passing new laws, and amendments to existing laws, limiting injury victims in their ability to file injury lawsuits. They typically do not label these laws “tort reform” anymore. Virtually every legislative session in Florida, corporations, doctors’ groups, and insurance companies send their lobbyists to argue for all sorts of laws, and amendments, to further and further limit consumers’ rights to bring lawsuits after they have been harmed. Most consumers have no idea this happens all of the time, without much fanfare. Basically your rights are dwindling behind your back.
Are There Statistics Supporting Tort Reform Efforts?
As it relates to insurance premiums for doctors, and medical malpractice “crisis” of frivolous lawsuits, the Florida Supreme Court recently released an opinion after reviewing all of the data supporting medical malpractice reform. They resoundingly rejected specious arguments related to so-called “frivolous lawsuits,” heightened insurance premiums due to them, and many other supposed facts often relied upon by tort reform proponents (and this is a conservative court).
As an aside, an outsider hearing damages awards upwards of $250,000 may think those numbers are outrageous, but verdicts and settlements include payment for medical expenses (past and future), past and future lost wages, and pain and suffering. Also, in Florida, tort reform has taken many other twists and turns, beyond medical malpractice laws. There are too many to list them all.
Some Examples From Florida (Although Laws Similarly Limiting Consumer Rights Have Passed Nationwide)
Here are just a few examples of laws that limit injured victims’ rights to obtain recovery when they have been harmed:
- Wrongful death / medical malpractice: parents of a child age 25 cannot sue for recovery when a doctor causes the death of their child. Children over 25 cannot sue for their parents, either. So if there are no other survivors, a negligent doctor would get away with medical malpractice, no matter how egregious his offense. Bright line rule. It’s ridiculous. To be somewhat crass, and very blunt, these laws completely piss me off. They are tragically unfair.
- Also there are *many* limits on bringing medical malpractice claims, far more than normal negligence cases, such as expensive and extensive pre-suit requirements, and many other complicated requirements. Collectively, the complex medical malpractice laws essentially mean that no personal injury or medical malpractice lawyer, as a practical matter, can afford to bring med mal cases unless the injuries and therefore monetary damages are completely catastrophic and the evidence of liability exceptionally clear. 95% of cases (roughly guessing) must be rejected, despite some serious injuries unquestionably caused by doctors.
- The Florida legislature has also totally re-written our slip and fall laws to make those claims much more difficult to bring. Specifically, many people seriously injured by slip and falls will not be able to find a lawyer willing to take the risk that their slip and fall cases will not be dismissed, if there is no evidence that the company knew or should have known about the condition that caused the fall. In other words, there are heightened requirements of proof that the company knew or should have known about the dangerous condition that caused the fall. (However, if you have a slip and fall case, then you need a creative and smart lawyer to give you the best chance of surviving a summary judgment motion, which is a court procedure allowing the defense to get your case dismissed, forever, without a jury ever hearing your claim, and without you getting a penny for your injuries.)
- Another example on the federal level are plaintiffs’ employment law claims. The overwhelming majority of discrimination and harassment claims are dismissed without ever going to trial. This was caused by judicial interpretation from conservative judges. The statutes themselves, in my very strong opinion, absolutely should allow these claims. But the judges hearing the facts of the cases often decide that virtually no facts showing discrimination are sufficient to establish a case. Based on the grim statistics alone, despite the fact that I started my career working for one of the largest employment law defense law firms in the country, I have never accepted a plaintiff’s employment discrimination or harassment case. In other words, judicial conservatism has caused me and many other plaintiffs’ attorneys to decide that we cannot afford the risk, or I should say likelihood, that these claims will be rejected by judges.
- Another example are workman’s comp laws–made so complex, and with such low fees, that many personal injury attorneys no longer accept those in Florida.
- Another example of proposed legislation in Florida, sponsored by lobbyists pushing the tort reform agenda, are fee schedules for doctors on injury cases. They want docs who take the risk helping an injured person, without payment at the time of providing the service, to be paid on a fee schedule roughly approximating what doctors customarily earn, when they are working for patients who pay when the service is rendered (or have the bill paid by their health insurance company shortly after service is rendered). There needs to be reward with risk of nonpayment (and extensive delay in payment). But if these docs are forced to take less in payment, many if not most will stop agreeing to see patients who have been injured in an accident, and need medical treatment despite not having the ability to pay right away. (Currently, if a patient needs treatment but cannot afford to pay either the entire bill or the deductibles, some doctors will see a patient on a “letter of protection,” which means the doctor agrees to get paid at the conclusion of the lawsuit.) In those situations, if this law passes, personal injury attorneys almost definitely will not have required medical evidence to prove injury in many cases. In other words, injured people, as a practical matter, will not be able to find an accident lawyer to take their case.
- Another example are changes to our PIP laws. In Florida, although consumers pay for 10K in coverage, they must see a medical professional within 14 days of their accident, or their medical claims are not covered under PIP. Additionally, unless a medical professional finds that they have an “emergency medical condition,” they are only entitled to $2500 in insurance, even though, again, the are required by law to pay for 10K in PIP insurance coverage.
There are many other examples of how tort reform proponents have successfully limited consumer rights to bring legitimate cases when they are injured. Those are just the few that came immediately to mind.
What Is The Solution?
Put simply, educate yourself. And vote accordingly. (If you have been injured, these laws may or may not have an impact on your particular case, depending on the facts. I would be glad to evaluate your case during a free consultation.)Share