Page 61 - Impact: Collected Essays on Expanding Access to Justice

Before the mid-1970s, consumer rights organizations focused little time or energy on the tort system . Until then, the common law of torts had generally operated without much political interference, having evolved through the courts for generations - indeed centuries - to afford citizens a means to challenge injustice and negligence . But that changed in the mid-1970s when the nation experienced its first liability insurance crisis . Insurance rates for doctors and some businesses suddenly started to skyrocket for no apparent reason .11 Insurers quickly blamed what they believed was occurring in the country – a “litigation explosion .” They demanded huge rate hikes from state regulators and convinced lawmakers that the only way to bring rates under control was to limit the legal rights of injured victims .12
It “turns out that there never was a ‘litigation explosion .’”13 However, the political lessons learned by the insurance industry were clear: by blaming lawyers and litigation for a crisis that the industry itself had manufactured, the industry could obtain major changes in tort laws to reduce or eliminate legitimate claims brought against businesses and professional groups .
B. how Tort reform restricts Access to Justice
Two tort reform proposals that have a significant impact on access to justice are caps on damages and mandatory limits on contingency fees for plaintiff lawyers . In addition, companies are making increasing use of “forced arbitration” clauses in consumer, employment and health care contracts, preventing harmed individuals from accessing the civil justice system at all .
1. Caps on Damages
A damages cap is an arbitrary ceiling on the amount an injured person can receive in compensation by a judge or jury, irrespective of what the evidence presented at a trial proves compensation should be . The most typical cap proposals cover non-economic damages . Non-economic damages compensate injured people for intangible but real “quality of life” injuries, like the loss of a reproductive system, permanent disability, disfigurement, trauma, loss of a limb, blindness or other physical impairment . As University of Buffalo Professor Lucinda Finley has written, “certain injuries that happen primarily to women are compensated predominantly or almost exclusively through noneconomic loss damages . These injuries include sexual or reproductive harm, pregnancy loss, and sexual assault injuries .”14
Caps on damages usurp the authority of judges and juries, who listen to the evidence in a case, to decide compensation based on each specific fact situation . Caps specifically on non-economic damages discriminate against senior citizens, children, stay-at-home parents, low-income families, or anyone with a relatively low level of economic or wage loss . According to Professor Finley,
11 See Malpractice - Doctors in Revolt, newsweek, June 9, 1975 (“Like measles in a nursery, doctors’ strikes seem to be erupting all across the nation. What the doctors are protesting is the skyrocketing cost of their malpractice insurance premiums.”).
12 For example, during this period California enacted a $250,000 cap on non-economic damages for malpractice victims. cal. ciV. code § 3333.2(b).
13 americans for insurance reform, rePeaT offenders; how The insurance indusTry manufacTures crises and harms america 9 (2011), available at http://www.insurance-reform.org/studies/Repeat_OffendersFinal.pdf.
14 Lucinda M. Finley, The Hidden Victims of Tort Reform: Women, Children, and the Elderly, 53 emory l.J. 1263, 1266 (2004).
Specific Areas for Reform: Tort Liability
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