Archive for trial lawyers

Real Tort Reform

Posted in Uncategorized with tags , , , , on December 6, 2009 by judsonwheelerphillips


As the debate over health care “reform” has been raging, one of the flash points for both parties has been over malpractice tort reform.

When doctors are spending over half a million dollars a year just for their insurance premiums, something is really wrong. You cannot watch daytime TV without seeing ads for personal injury attorneys, trolling for new clients.

The primary reform offered is to cap pain and suffering judgments. The most common figure is $250,000. The theory is that plaintiff’s lawyers take a cut of the recovery and the biggest part of the recovery is the award for pain and suffering, if that figure is limited, the lawyers will start looking elsewhere and there will be fewer lawsuits.

I do not like that. First, I think it is the right of the jury to decide that. A jury can punish a bad doctor with a large verdict. Arbitrary government caps interfere with the free market. Finally, what is your pain and suffering worth? If a doctor screws up and leaves me in pain for the rest of my life, I can guarantee you, my pain and suffering is worth a whole lot more than $250,000.

So what is the solution?

In litigation, there are three types of burdens of proof. The first is proof beyond a reasonable doubt. This is the burden of proof in criminal cases. In civil cases, the burden of proof is a preponderance of the evidence. All that means is, that is it more likely than not, something happened. Basically, you flip a coin.

There is a third burden of proof, called clear and convincing evidence. It is only used in a few types of hearings, but if we want real tort reform, then all we need to do is to raise the burden of proof in medical tort cases from a preponderance of the evidence to clear and convincing evidence. This would eliminate many really weak lawsuits, yet would allow juries to compensate someone who has been badly injured by true negligence.

This is a tort reform that would cost absolutely nothing.

This is simple and would be effective. Which is probably why you do not hear a word about it coming from Washington.