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Coal and oil prices soaring as China squeeze and Because corporations typically engage in a cost-benefit analysis before considering whether to stop a wrongful action such as polluting or not enacting proper measures for safety , they contend that corporations will decide that the cost of changing a wrongful practice would be greater than the cost of continuing it, unless there is the chance that the cost of continuing will be made greater by a successful lawsuit. In this view, the prospect of paying a small damage award would have little or no effect in correcting the wrongdoing, and would essentially allow the corporation to continue an unsafe practice unless state or federal regulators interceded. Tort reform supporters argue that this precisely describes the problem: lawsuits over socially beneficial practices increase the costs of those practices, and thus improperly deter innovation and other economically desirable activity.
They further suggest that small businesses are hurt worse by the threat of litigation than large corporations are, because the legal expenses from a single lawsuit can bankrupt a small businessperson. Proponents of the existing tort system contend that tort reform advocates exaggerate the costs and ignore the benefits of the current tort system. In contrast, a study by Emory University professors Paul Rubin and Joanna Shepherd argued that tort reform actually saved tens of thousands of lives because "lower expected liability costs result in lower prices, enabling consumers to buy more risk-reducing products such as medicines, safety equipment, and medical services, and as consumers take additional precautions to avoid accidents.
Tort reform advocates cite a study of auto safety improvements by Harvard University professor John D. Graham for a conference at the Brookings Institution found that. The case studies provide little evidence that expanded product liability risk was necessary to achieve the safety improvements that have been made. In the absence of liability risk, the combined effects of consumer demand, regulation, and professional responsibility would have been sufficient to achieve improved safety.
In some cases, however, liability seemed to cause safety improvements to occur more quickly than they would have in the absence of liability. Graham concludes by endorsing reform, noting that case studies of the current product liability system "suggest that manufacturers may be inclined to delay design improvements when they fear that improvements will be used against them [in court]. However, design improvements to increase safety cannot be used against manufacturers in court to show that the product was unsafe. Rule of the Federal Rule of Evidence specifically states, "evidence of the subsequent measures is not admissible to prove: negligence; culpable conduct; a defect in a product or its design; or a need for a warning or instruction.
It is true, however, that the evidence could be introduced to prove "ownership, control, or the feasibility of precautionary measures. Rule bars evidence that is relevant, but overly prejudicial. Another presenter at the same Brooking Institution conference, Murray Mackay of the University of Birmingham , claimed safety and other innovations were inhibited by fear of lawsuits:. It has held back new designs, consumed resources that might otherwise have been directed at design improvement, and added on costs to the consumer.
As a result, most safety-related advances in recent years have come from European manufacturers and, more recently, from the Japanese. The effect of tort reform on medical outcomes has been studied with mixed results. A study found worse childbirth outcomes for mothers and infants in states with caps on non-economic damages. The only tort reform effect that proved robust was a negative effect of collateral source reform on black infant mortality. Proponents of tort reform counter by pointing to data from New Zealand, which has abolished its medical tort system but has medical error rates close to those in the United States.
Under some interpretations of the law, a frivolous lawsuit is one that cannot reasonably be supported under existing legal precedent or under a good-faith argument for a change in the law. However, the term has a broader rhetorical definition; in political debates, "frivolous" is also used to describe tort lawsuits where there is only a remote link between the conduct of the defendant and the injuries alleged by the plaintiff or where the damages sought by the injured plaintiff are perceived to be too high for the injuries sustained. Tort reform advocates also complain about lawsuits that are brought based on purely hypothetical damages where the plaintiffs have suffered no tangible harm whatsoever, or where the harm caused could be traced to elements of excessive negligence or irresponsibility on the part of the claimant.
Existing rules, however, regulate the prosecution of "frivolous" lawsuits. Under already existing law in every US jurisdiction, if a defendant or the judge believes that a plaintiff has misrepresented the facts or the law or has brought a "frivolous" pleading, the defendant, or the court on its own initiative, may ask for the action to be thrown out and for the attorney bringing the action to be penalized with a variety of sanctions. For example, Rule 11 of the Federal Rules of Civil Procedure provide in part: "By presenting to the court a pleading, written motion, or other paper--whether by signing, filing, submitting, or later advocating it--an attorney or unrepresented party certifies that to the best of the person's knowledge, information, and belief, formed after an inquiry reasonable under the circumstances:.
Ethical rules also forbid attorneys from filing "frivolous" lawsuits. A simple review of these published opinions demonstrates that courts take violations of their pleading and ethical rules seriously. Tort reform in Texas has imposed a requirement in medical malpractice cases that only a physician practicing or teaching in the same specialty as the defendant can serve as an expert witness in the matter. Additionally, a report from that witness showing evidence of negligence must be filed with the court within days of the filing of the case.
Failure to do so results in liability for the defendant's legal fees. Filing an action but failing to find a suitable expert or failure to file adequate reports within the time frame provided can result in hardship for a plaintiff who may already be crippled by physical injuries and bankrupted by medical fees. Advocates of tort reform also complain of regulation through litigation , the idea that litigation is being used to achieve regulatory ends that advocates would not be able to achieve through the democratic process.
For example, Rep. Tort reform advocates argue that by limiting the threat of frivolous lawsuits, the medical industry would migrate away from practicing defensive medicine. This would reduce the number of unnecessary tests and procedures, typically performed under patient request, thereby reducing the costs of medical care in general. As an argument against the current system, tort reformers link the rising costs of premiums for physicians' medical malpractice insurance  to the rising cost of personal and group policy health insurance coverage.
California's Medical Injury Compensation Reform Act has been cited as a model for tort reform in health care. Others deny that medical malpractice suits play a significant role in the cost of health care. Including legal fees, insurance costs, and payouts, the cost of all US malpractice suits comes to less than one-half of 1 percent of health-care spending. According to Baicker and Chandra , increases in premiums are not affected by past or present malpractice payments, but may increase due to other unrelated factors.
Chandra, Nundy, and Seabury find that the rising cost of medical services may explain the bulk of the growth of "compensatory awards". They also find that the greatest ten percent of the malpractice payments have grown at a smaller pace than the average payment for the years and This means that the "medical malpractice crisis" is not necessarily fueled by the growth in malpractice payments. Furthermore, malpractice pressure actually forces our hospitals to be technically more efficient. This implies that existence of the medical malpractice system is beneficial, and its strength should not be diluted by either putting caps on non-economic damages or by decreasing the statute of limitations.
There has been a noticeable drop in medical malpractice insurance premiums for physicians in states that have enacted Tort Reform. States that have not enacted Tort Reform legislation tend to have a higher cost of professional medical liability insurance than states that do. Opponents of tort reform legislation often reference the story of Frank Cornelius, whose New York Times op-ed piece, "Crushed by My Own Reform," told of allegedly negligent procedures performed by his physicians. In , Cornelius had fought for damage caps, but he later came to repent of his role in that campaign. Some say that federal licensing is a better approach and a strong central regulatory body is the answer to deal with negligent physicians who cross state lines.
Some supporters of tort reform posit that reforms can significantly reduce the costs of doing business, thus benefiting consumers and the public in the long run. Porter stated: "product liability is so extreme and uncertain as to retard innovation. The legal and regulatory climate places firms in constant jeopardy of costly and The existing approach goes beyond any reasonable need to protect consumers, as other nations have demonstrated through more pragmatic approaches. Critics of the tort reform movement dispute the claim that the current tort system has a significant impact on national or global economies. But that paper, too, failed to demonstrate any employment effects of the tort system and made no prediction about the impact of tort law change.
Critics of tort reform also contend that the real purpose of the proposed changes is to shield businesses, especially large corporations, from having to pay just compensation to consumers, patients and clients for the harm incurred from fraud , negligence , medical malpractice , product liability or other legitimate tort claims. In response to lawsuits filed against gun manufacturers by several municipalities, a bill was proposed by the US Congress in that would provide immunity to gun manufacturers for most negligence and product liability actions and prohibit the Bureau of Alcohol, Tobacco, Firearms, and Explosives from revoking a dealer's license, even in cases where a dealer has been identified as selling a relatively high number of guns subsequently used in violent crimes.
Organizations such as the United States Conference of Mayors oppose gun manufacturer immunity legislation. Opponents of tort reform deny that there has been a "litigation explosion" or "liability crisis", and contend that the changes proposed by tort reform advocates are unjustified. Records maintained by the National Center for State Courts show that population-adjusted tort filings declined from to Tort reform advocates allege that these numbers are misleading.
They claim that most liability costs come from pre-trial settlements, so the number of trials is irrelevant. They also note that the choice of the start date is misleading, because the largest increase in the number of tort cases occurred between and They also argue that the use of the median, rather than the mean, is a misleading statistic for measuring the magnitude of the litigation problem. Tort reform opponents argue that corporations and insurance companies are the worst abusers of the litigation system. Tort reform in Texas changed the definition of negligence in the context of emergency room treatment to include only "willful and wanton" acts.
This has been interpreted as including only acts intended to harm the patient. Texas Monthly wrote, "Windows were shattered. Hail knocked holes in rooftops. Unfortunate animals were beaten to death. After the storms, thousands of lawsuits were filed against insurers and adjusters. The lawsuits were based on allegations of "low-ball payments on claims. The bill represented "an almost visceral fight between the insurance industry, Texans for Lawsuit Reform and trial lawyers whose symbolic leader in storm-damage claims in Steve Mostyn of Houston. In February , a bill was introduced in the Texas state Senate that would aim "at ending hailstorm lawsuit abuse. Dan Patrick supported the bill Senate Bill 10 and said during his State of the State address , "Hailstorm litigation is the newest form of lawsuit abuse.
The bill would still allow hailstorm insurance claimants to sue their insurance company. It would allow plaintiffs to sue for either deceptive trade practices or unfair settlement, but not both. According to SE Texas Record , "The bill also seeks to end barratry in hail litigation, as reports of lawyers employing contractors and insurance adjusters to drum up clients have continued to surface the past several years. A number of proposals have been made by advocates of tort reform, although these proposals are not agreed on by all 'tort reformers' and are considered by many opponents a roll-back of the reforms of the twentieth century.
Non-economic damages caps place limits on a jury's ability to award damages to victims for pain and suffering and loss of enjoyment of life as well as punitive damages. The purpose of these reforms is to allow for fair compensation for victims while preventing excessive, emotionally driven jury awards from bankrupting entire organizations and leading to job losses and cost increases for consumers. Proposals to cap non-economic damages are one of the most frequently proposed tort reforms, and have generated controversy over their fairness, efficacy, and constitutionality.
For example, tort reform critics point to the story surrounding the Ford Pinto,  where accountants determined that the expected payout in wrongful death suits would be less than making a design change to prevent the gas tanks from blowing up on minimum impact. For tort reform critics, the prospect of unpredictably large damage awards would reduce the incentive that companies have to behave in this manner. Tort reformers have had the most legislative success in limiting the common law rule of joint and several liability , often replacing it with a rule of proportionate liability. Of the forty-six states that had a joint and several liability rule, thirty-three states have abolished or limited the rule.
Nearly every Western democracy follows the "English rule," which requires the loser of a civil suit to compensate the winner for his or her attorney's fees. The "American rule" differs; in most cases, each party bears its own expense of litigation. Supporters of tort reform argue that loser-pays rules are fairer, would compensate winners of lawsuits against the costs of litigation, would deter marginal lawsuits and tactical litigation, and would create proper incentives for litigation, and argue for reforms that would require compensation of winning defendants some or all the time.
Opponents argue that such rules would have had a chilling effect on civil rights litigation. Proposals to limit frivolous lawsuits have been criticized on the grounds that the restrictions could be used to impede individuals attempting to enforce civil rights laws, according to The Federal Judicial Center's Study of Rule Robert L. Sheila Jackson Lee have both argued that Brown v. Board of Education would have been called frivolous. Tort reform is controversial. George W. Bush made tort reform a centerpiece of his successful run for Texas governor and of his second-term domestic policy agenda. In the presidential election , Democratic vice presidential nominee John Edwards , a successful trial attorney, was criticized by tort reform advocates for lawsuits that he brought against obstetricians on behalf of children who suffered severe birth injuries; reformers criticized the suits as relying on " junk science ", while Edwards denied the allegation.
Republican lobbyist Grover Norquist points out possible political motivations for tort reform, writing in American Spectator that "Modest tort reform, much of which has been actively considered by committees in both houses, would defund the trial lawyers, now second only to the unions, and this is debatable, as the funding source of the Left in America. The United States Supreme Court sometimes weighs in on tort reform debates, but here too, the justices do not always vote according to their predicted ideological stereotypes. In the seminal case of BMW v. Bailey raised the prospect of an early interest rate hike in a speech last night, saying the monetary policy committee is ready to do what is necessary to tackle rising inflation.
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