Posted on Thu, Dec. 09, 2004


Tort reform vital, but proposals are far from perfect



OUR CULTURE OF victimhood has combined with a growing lottery mentality to create a litigation explosion that stifles job creation, threatens critical medical care in many areas and is too often an affront to the concept of justice and fairness.

While there’s plenty of room to debate specific proposals to address the problem, there should be no room to debate the fact that Americans file too many lawsuits that should never be filed, and that outrageously excessive jury awards — sometimes in cases most people would agree lack any merit — frighten many businesses and doctors into settling cases that lack merit.

Large jury awards wouldn’t be such a problem if the only ones who suffered were those who did wrong. But liability insurance picks up many of those costs, and businesses pass them along in higher prices or else eat the losses and curtail hiring. The situation is even worse for doctors, whose fees are dictated by government and insurance company reimbursement rates.

Even suits that are thrown out of court cost time and money to fight; and settling bogus cases rather than risking a bad verdict, like practicing defensive medicine, adds even more costs to us all.

It is a problem that desperately needs a solution. And so we’re glad that both Gov. Mark Sanford and the House Republican Caucus have made it a priority.

Both seek to limit judge- and jury-shopping and to protect wealthy defendants from getting stuck paying the entire judgment, even if their share of the blame was minuscule. Those changes, along with House proposals to strengthen the mechanisms for punishing those who file frivolous suits, will go a long way toward addressing the problems.

So will a House proposal to create a medical claims review procedure that would have medical professionals — who can make decisions based on knowledge rather than emotion — review claims and make nonbinding recommendations before a lawsuit could proceed. This could encourage plaintiffs to drop frivolous suits and defendants to settle when they were wrong.

But doing all of this right is key. In last session’s House bill, for example, the provision protecting deep-pocketed co-defendants from getting stuck with the bill contained loopholes that made it virtually meaningless.

The other key is avoiding simplistic solutions, such as arbitrary caps on punitive damages and so-called non-economic damages. We have strong reservations about the way such damages are awarded; but we believe caps should be a last resort. The more complex proposals may well solve the problem. Moreover, caps are so controversial that their presence could once again kill legislation that we desperately need.

As for punitive damages, we see no reason ever to limit them; what we need is to radically change them. Since punishment is the job of the government, punitive damages should be awarded mostly or entirely to the state, not to plaintiffs and their attorneys.

Trial lawyers who refuse to acknowledge even that frivolous lawsuits are filed are either delusional or deceptive. But the doctors and business people who believe caps are a silver bullet are off-base as well. Unfortunately, those two extremist views have so far driven most of the “debate” in this nation and state, and it threatens to do so again next year. It’s time to get past that, and pass a serious reform package.





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