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Ryan R. Bradley
Ryan R. Bradley
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Tort Reform Part One: Ten Key Facts

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Here is an interesting thought, Would United Airlines have admitted to its wrongdoing in dragging a mild-mannered Kentucky doctor from one of its flights if the victim had not had the presence of mind to retain an attorney?  Maybe, maybe not, its hard to tell.  One thing is certain however, the risk of a civil lawsuit weighed heavily on United Airline’s decision-making process.  This is justice in action, and this is WHY we have a civil justice system.  This is also why the tort reform conversation is so important.

In Illinois, tort reform is a broken record. Every five to ten years, there is a push toward what has been called “Tort Reform.” While the term is discussed frequently, the voting public is wholly uninformed about the facts underlying the contentious topic. Generally, this discussion takes place at the state level rather than at the federal level for two reasons. First, it is the purview of the states, rather than the federal government, to determine how the civil court system is administered in each state (ie, potential “caps” on damages) and second because rarely is there a situation on the federal level where one party controls all of the necessary branches of government to pass such disputed legislation.

In this series, we will discuss tort reform in its various facets, but first it is important to understand the facts.

The people of Illinois have spoken out against tort reform in the context of medical malpractice cases recently. The General Assembly took steps against the civil justice system in 2005 when legislators passed and then-Gov. Rod Blagojevich signed legislation that set limits on pain and suffering and other non-economic damages in medical malpractice cases.  This decision was based in large parts upon the legislature believing certain myths. It was an immediate boon for doctors and hospitals since it limited the amount of damages that an individual plaintiff could receive for pain and suffering to $500,000.00. Now, that SEEMS like a great deal of money, but consider for a moment the catastrophic results of medical malpractice. This law was emphatically struck down by the Illinois Supreme Court, which ruled in 2010 that limits on damages awarded to victims of medical negligence are unconstitutional.

The reasoning behind the Illinois Supreme Court ruling is easy to grasp. In the civil justice system, the only recourse available to injured parties is monetary damages to compensate for pain and suffering, and a jury of twelve peers is the means by which this can happen. For the Legislature to limit this ability is a clear violation of the constitutional right for a fair trial. It may be shocking, but this was the third time that Illinois has addressed this problem.

Now, with the election of Donald Trump, the Republican-controlled Federal government has wasted little time in proposing legislation on the federal level to take away the rights of those injured by ALL corporations to seek recourse. This thought is troubling, but what is more troubling is that the facts simply do not support the conclusion, and many in the public blindly follow the faulty logic despite the fact that they are believing lies. The following ten facts about tort reform, and, while the author is a trial lawyer at a trial law firm, the facts are true and apply both to Illinois and the Country as a whole.

  1. Civil lawsuits seeking monetary compensation have been on the decline for decades. According to the National Center for State Courts (NCSC), tort cases declined by 25 percent between 1999 and 2008. National Center for State Courts.  This is in stark contrast to the information promulgated by advocates of tort reform who attempt to use fear to misguide the public into believing that tort lawsuits actually cost them through increased premiums.
  2. According to the NCSC, tort cases only make up five percent of the civil caseload.  This is a very small percentage. Contract cases, which are more likely to involve corporations and other business disputes, are 10 times more numerous, making up 51 percent of the court’s work. While tort cases are on the decline, the number of contract cases rose 63 percent between 1999 and 2008.  National Center for State Courts.
  3. The actual amount of the monetary damages in civil tort cases is incredibly small, and most of these amounts come far from actually compensating victims for their injuries.  The Bureau of Justice Statistics has calculated that the median monetary award for civil tort cases is only $31,000.00.
  4. Punitive damages that are designed to punish corporations and other actors for outrageous conduct such as fraud and the disregard of the safety of others are both incredibly rare and incredibly small.  With a median amount of $55,00.00, punitive damage awards are only granted in 5% of all civil tort cases and almost never in medical malpractice cases.  Bureau of Justice Statistics
  5. Doctors are not disproportionately singled out by civil tort lawsuits.   Both the NCSC and the National Practitioner Databank (NPDB), to which medical malpractice payments must be reported, have found the number of malpractice payments to have steadily dropped over the last 10 years.
  6. The number of malpractice payments in 2010 was just 13,277 nationwide, a 35 percent drop since 2001. According to the NCSC, medical malpractice cases represent well under 2 percent of all civil cases, and less than 8 percent of tort cases. National Practitioner Data Bank; National Center for State Courts
  7. In Illinois, there is essentially no such thing as a “frivolous” medical negligence lawsuit.  Pursuant to the Illinois Supreme Court rules, every l;lawsuit that is filed in Illinois against a medical provider must be reviewed and certified by another doctor in a similar filed.  Thus, unless a fellow physician approves the merits of the case, no medical malpractice lawsuit may even be filed in Illinois.
  8. 22 percent of medical malpractice cases involve the death of the patient, as opposed to just three percent in other types of cases.  National Center for State Courts.This is why awards in these types of cases tend to have larger awards than other cases.
  9. The premium increases experienced by health care professionals are cyclical and not tied to medical malpractice lawsuits in any fashion.  Huffington Post
  10. The Journal of Patient Safety has found that medical errors is the third leading cause of death in the United States only behind heard disease and cancer.

These are only ten of the many facts that all people interested in entering the Tort Reform debate should remember.  There is a significant amount of misinformation released into the public domain from organizations that support tort reform, and much of it is either inaccurate or taken out of context.  Most importantly, all of these organizations, mostly buoyed by large companies and insurance companies, totally forget that the civil justice system and its monetary awards are the only means available for those who are injured to receive justice and compensation for the negligence of others.  Thus, at the most basic level, tort reform flies in the face of the system of government that our Founding Fathers established.  No matter what side of tort reform you fall on, now you have the facts, so let the debate begin.

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  1. Wayne Parsons says:
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    Thanks for explaining the pathway to justice.

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Illinois Plaintiffs Lawyer by Koester & Bradley