The topic of “tort reform” has been around for quite some time. It has been primarily a state issue. States have ad-dressed this in varying degrees. For full disclosure, I have been involved in the tort reform effort in Mississippi for more than 15 years. At that time, states like West Virginia, Illinois, Louisiana, California, and yes, Mississippi, were considered fertile ground for lawsuits, because certain jurisdictions were considered “friendly” to the personal injury bar. Because of efforts from both the medical and business communities, frivolous and unfounded lawsuits have di-minished significantly in Mississippi.
The American judicial system handles many types of cases, but probably the two most prominent facets are: the criminal justice system and the civil justice system. In my opinion, the biggest differences between these two are:
- In the criminal justice system, you have to have evidence of wrongdoing. The burden of proof of wrongdoing is on the prosecution. The defendant is “presumed innocent until proven guilty.”
- In the civil justice system, you can sue anyone for any reason. The plaintiff can claim aggrieved status against the defendant. And the defendant has to prove himself innocent.
It is that last point-“the defendant has to prove himself innocent”- that is at the root of tort reform. Even when the defendant in a civil lawsuit “wins,” it can come at a large cost. And that “cost” can be: how much was paid for legal defense, the financial loss the defendant incurred from lost time at work, the loss of reputation due to media hysteria and coverage from the lawsuit, etc.
After one presentation on the merits of tort reform I made to a large group of doctors, I had one physician come up to me afterwards and say, “David, I think I have the solution to our problem. If we could pass a law that required lawyers to use their so-called ‘expert medical witnesses,’ as their and their families’ personal physicians, this issue would go away in a hurry!”
The topic at hand is “medical liability.” The Hippocratic Oath states “First do no harm.” There are good doctors and bad doctors, just like there are good lawyers and bad lawyers. But I truly believe that the vast, vast majority of the medical community believes in and truly lives by the Hippocratic Oath.
Now the topic of “Federal Tort Reform” is in the news. Is this a good or bad thing?
If this was a truly fair and impartial world in which we lived, there would be no need for “reform” of our civil justice system. But as we all are witnessing daily, “fairness and impartiality” are becoming lost concepts in this country! No one involved in the tort reform effort should have a goal of seeking an advantage over the other guy. I trust that if and when federal tort reform is taken up, it is done so with the idea that neither side will have an unfair advantage over the other. Lady Justice is personified with a blindfold and scales, signifying that justice is both blind and impartial. She must be central to any judicial reform that is considered.
David Allen; President & CEO; Mississippi Blood Services