This topic opened up via another thread when someone outside the U.S. said, in essence, our tort laws are a joke. A Trademark & Copyright Lawyer posted his viewpoint that the tort system needs reform. I strenuously disagree. Bring it on! Let's bring out the debate. I'm ready to discuss this issue, are you?
I'll give you my position:
I believe that tort reform is a joke. It's one of the cruelest jokes being played on consumers. The sole purpose of the campaign is to provide immunity to corporations and other large entitites. Asbestos reform? Pharmaceutical reform? The reasoning here is somewhat analagous to Partnership (LLP, LLC) and Corporations Law. Let me give you a bit of a background, an LLC/LLP/Corp. essentially provides a shield to the investors of the company. If something goes wrong, like the company goes bankrupt or kills a bunch of people, the investors are only out the price they paid for their shares. The advantage of this arrangement is that it gives investors protection when management makes a bad decision since they only risk what they invest. On the other hand, most owners of small businesses that are sole propertiorships or General partnerships remain liable even if the business can't pay it's debts or if the business causes harm to another. The creditor can pursue the owners of the business to collect the debt even after the business itself folds.
Before I come up with an example, let me give you a bit of background on Tort law or as most people call it, personal injury law. In most states, a person is liable for the harm to another when the harm that they caused is due to their own negligence. A person is generally not liable for **accidents**, unless the person has a duty of strict liability. There's a subtle but important distinction here. Negligence is a threshold requirement which triggers a duty to pay, unless the actor is operating under strict liability.
The Repubs want to extend this idea one step further for corporations. They want to limit the liability of corporations who cause injuries to other people. For example, Bob's wife gets crushed by a crane owned by Westinghouse. The Republicans want to limit the amount of money that the company has to pay Bob's wife so that the company can increase profits. Remember, the individual investors themselves are not personally liable.
One of the favourite dog and pony shoes of the GOP are doctors and their claims regarding medical malpractice. The GOP says that trial lawyers are running doctors out of practice. Usually, the GOP gets some 55 year old male doctor who says he must close down his business. He gets in BMW and drives away to his home in the gated community. In our state, we have a doctor in Kennewick that won't see a patient unless the patient agrees to sign an affadavit that she is for tort reform. If the patient refuses to agree to the doctor's demand, the doctor refuses to see the patient. Conservatives love it. The problem here (at least in our state) is that the doctor is dumping the Hypocratic oath by refusing to see patients based on his own personal desires and not the medical needs of the patient.
Don't be fooled. This is really about shielding liability so that people who make negligent mistakes aren't responsible for paying for them. In esence, the Republicans want to make it where when a person gets injured because the company which owns the facility decided to ditch safety protocols because they wanted to save money, the person injured bears the loss. Not only does the injured person get the pain that comes with having his hand cut off, his leg broken, or his nerve system severed causing paralyzation, the Republicans want to make sure that the company who caused the damage pays a fraction of their responsiblity or nothing at all.
Back to medical malpractice, say Jane sees a doctor who was drunk while operating and he ends up taking her liver out instead of her kidney that he promised to remove (yes this stuff actually happens). The GOP wants to make it so that she can't recover her true losses. In our state, the GOP has an initiative where, in the above example, the doctor could amortize the amount owed to the victim and, this is the kicker, if the person (Jane) died during the 25 year repayment plan, the doctor could cease making payments. Talk about a real incentive to kill your mistakes.
I'm expecting some counter arguments at this point, and rather than counter the counter arguments before hand or bring out my body of facts and statistics, I'll leave this as the opening salvo and wait till people post their response.
Edited for clarity...probably not enough though.
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