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Keeping Watch on Tort Reform

Max Kellogg | Legal Staff Writer

Tort reform has been, and will continue to be, an issue for the plaintiffs’ bar. Proponents—such as the U.S. Chamber of Commerce—often claim that changes and restrictions are necessary to prevent frivolous lawsuits, burdensome litigation and excessive jury awards. Opponents, however, assert that it deters plaintiffs from bringing claims of merit, does not properly serve justice and does not sufficiently deter or punish wrongdoers in society.

These differing perspectives are exacerbated by conflicting studies and reports. For example, the Center for Justice & Democracy’s June 2016 installment of Medical Malpractice: By The Numbers cites hundreds of sources and studies that support a conclusion that medical malpractice cases inundate court dockets. But, according to the National Center for State Courts, medical malpractice and product liability cases account for only 5% of tort caseloads and less than 1% of the total civil caseload.

Due to the varying viewpoints and significant impact that any tort reform legislation could have on plaintiffs’ firms, it is necessary to keep up-to-date on current trends. Therefore, here are some of the most recent stories, discussions and developments involving tort reform:

1) At the federal level, House Speaker Paul Ryan announced a plan to roll back Obama regulations and presented a white paper on healthcare reform.

According to the New York Post, on June 14, 2016, Paul Ryan released a proposal that targeted regulations on a wide range of issues, including global warming and rules pertaining to financial institutions, among others. Ryan claimed that these efforts were to prevent frivolous lawsuits and further other elements of “tort reform.” The plan is to “repeal regulations on power plant emissions that discourage the use of coal, roll back a major update of the Clean Water Act, ease approval of liquefied natural gas facilities and nuclear power plants, and open up more federal lands to energy exploration.”

On June 22, Ryan released a health policy white paper. The elements of his white paper were represented in the Republican Party’s platform that was published on July 18. One section of the policy, entitled “Better Care and Lower Costs: Tort Reform,” supports federal legislation to cap non-economic damages in medical malpractice lawsuits.

2) Media wants tort reform after online media company’s bankruptcy. 

The recent declaration of bankruptcy for Gawker Media also sparked the discussion of tort reform, but from an unlikely source, popular media. Gawker’s bankruptcy arose from a civil lawsuit it lost, which was filed by professional wrestler, Hulk Hogan. Gawker was required to pay $140 million for posting portions of a sex tape featuring the wrestler. What sparked the tort reform debate, however, was the reports that billionaire Peter Theil funded the suit as a result of a personal vendetta.

An article from the Washington Post praised the case against Gawker, providing that “[n]ot even the staunchest of First Amendment supporters believes that the media should be exempted from lawsuits, period.” Nevertheless, the report condemned Thiel’s role in the case, claiming “this… billionaire is funding such suits because he’s trying to silence his critics and future billionaires might use similar tactics to shut down organizations that we like, such as the New York Times.” The author concluded that “[w]e tort reformers should be pleased that members of the media are finally starting to realize something… with regard to our litigious culture, namely that the process itself is the punishment.”

3) New York fights to expand statute of limitations for medical malpractice.

At the close of New York’s current legislative session, the fate of Lavern’s Law was put on hold. Named after a misdiagnosed cancer patient, the bill called for a change as to when the statute of limitations would start to run in the state. Instead of triggering the statute of limitations when the instance occurred, this legislation would allow injured plaintiffs to make their claim within 15 months of the discovery of the error. Assemblywoman Helene Weinstein said her bill has 38 Senate sponsors, both democrats and republicans, which would likely pass if it was brought up for vote. As of now, there is no indication as to whether this legislature will be brought up for vote in the fall.

4) Florida Supreme Court to rule on medical malpractice damage caps.

After years of controversy regarding Florida’s medical-malpractice laws, the Florida Supreme Court recently heard arguments concerning the constitutionality of the limits on damages in malpractice lawsuits. This issue remains pending as the court moved into its annual summer break on July 7, 2016. 

The underlying case, which was filed in Broward County, stemmed from injuries suffered in 2007 by a dental assistant whose esophagus was perforated from tubes inserted in her mouth before a carpal-tunnel surgery.

The much anticipated Florida Supreme Court’s ruling will address the most-controversial issue in the Legislature’s 2003 overhaul of the medical-malpractice system—whether non-economic damages, commonly known as pain and suffering damages, should be capped.

While there is not an indication as to how the Supreme Court will decide the issue, in 2014 the Court held that it was unconstitutional to limit damages in a wrongful death malpractice case.


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