“Tort reform” is a phrase used to describe legislated control over the amount of money that plaintiffs are allowed to recover in civil suits. Operating on the presumption that state legislative bodies know more about justice than the actual victims of injustice or physical harm do, many states, like Ohio, have worked to limit plaintiffs’ recoveries, confined mostly to either certain types of actions (medical malpractice, suits against municipalities, etc.) or certain types of harm (emotional distress is usually the big loser in tort reform).
Now, tort reform is a great thing for a lot of people. If you’re a large insurance company that wants to screw over the insureds under your care, tort reform is a really good idea. If you’re a drunk, incompetent, or negligent doctor or lawyer, tort reform is probably going to save you a lot of money some day. If you’re a manufacturer or retailer and you want to be able to get away with lax safety standards or other general disregard for the public health and safety, tort reform is likely near the top of your lobbying agenda. And, in Ohio, tort reform is apparently now working out like gangbusters for sexual predators:
A jury decided in June that a 21-year-old woman, sexually assaulted by her pastor when she was 15, should get upwards of $3.6 million for the post-traumatic stress she’d endured in the years since he attacked her.
Because of a state law that went into effect in 2005, though, she’ll get less than a sixth of that amount.
A judge ruled in Delaware County Common Pleas Court this week that the woman could receive no more than $500,000 because of the state’s limit on compensatory damages for emotional stress in civil cases. The limit was a key element of an effort to rein in lawsuits, a priority of Republicans’ in the state legislature in the mid-2000s.
In short, a jury of Ohioans came to the deliberated-upon conclusion that a woman’s years of suffering, including post-traumatic stress disorder after being raped during a counseling session by her pastor, was worth $3.6 million dollars in compensation. But the good Republicans of Ohio’s state legislature have decided that it would ultimately be injurious to the public good to permit juries to even contemplate damages in excess for $500,000 for such frivolous touchy-feely claims as “emotional distress” for victims of savage sexual abuse. Essentially, the rapist was given back $3.1 million of a $3.6 million debt he owed to the victim of his aggression because the state of Ohio feels that the suffering of such victims is never worth more than $500,000.
The overarching problem with tort reform is that it could only ever be good for people who lose lawsuits, and bad for everybody else. That tort reform is good for negligent, reckless, or just downright dangerous defendants is a no-brainer: the incompetent doctor, the drunk driver, the “lemon” dealer, the careless manufacturer, the discriminatory hirer and firer, the stingy landlord, everyone who could benefit from injuring the public stands to gain from tort reform. Even when damages are limited just to specific harms like emotional distress, the unjust will still find a way to win: in short, the state legislature of Ohio does not value the emotional well-being of its citizens, at least not enough to permit juries to even contemplate their value over $500,000.
The rapist’s political champion, Republican state representative Kirk Schuring, is quoted with the traditional red herring of tort reform:
I don’t know how you assign a dollar amount to emotion. … There’s probably never going to be an adequate dollar amount. And $500,000 is not a small sum of money. … And who’s to say that $3.6 million is enough? Why not $36 million?
Who is to say that $3.6 million is enough? A jury of your peers is. That is the system contemplated by the Constitution, the system that Schuring is supposed to serve. If the damages are generally not worth that much, if the claim is truly frivolous, then it is up to the jury, the trier of fact, to make that determination in a flexible, organic, case-by-case process, not just writ large from above. And yet, despite his professed agnosticism on the question of how much emotional damages are worth, Schuring seems to be 100% certain that they are never worth more than $500,000. Who’s to say that $500,000 is always enough?
Tort reform is often proposed a protection for businesses – and in a sense, it certainly is. Businesses facing unnaturally-limited damages have a clear picture of how much (and how little) they need to care for the safety of others. The grand purpose of civil liability is to provide economic disincentives for bad behavior. Removing a disincentive to behave badly (for example, limiting emotional damages that sexual predators and their principals can suffer) is the same as incentivizing such behavior. The only thing that keeps businesses from behaving negligently is the prospect of successful plaintiffs’ recoveries for harms they suffer, as valued by juries. But now, in Ohio, businesses, governments, and individuals know that any harms they inflict on plaintiffs’ emotions are relatively cheap now, compared to what prior to tort reform would have been liability that actually scales to the harm done to the plaintiff.
The next big area of focus for tort reform is medical malpractice. With the healthcare industry’s rapid changes in the last few years, combined with the new pressures insurance companies face thanks to proscriptions against denying coverage based on pre-existing conditions and other provisions of the Affordable Care Act, the heat is on to cut costs wherever possible and tort liability is certainly up there. Unfortunately for the friends of the negligent and the reckless, tort reform is empirically known not to cause decreases in insurance premiums. All that it changes is that insurance companies and doctors are faced with fewer reasons to monitor and improve their safety procedures. When a medical malpractice judgment can cost millions of dollars just to settle, you have millions of reasons to make sure your doctors don’t commit malpractice; the hospital, being a much cheaper cost-avoider than patients, is properly responsible for policing its own internal safety procedures and for compensating the public when it fails to do so. Artificial limitation of malpractice recovery instead shifts the costs of malpractice onto the public: limiting recovery to, say, $500,000 for medical malpractice, would shift all harms from medical malpractice in excess of $500,000 to the victim.
Whether it’s a rape victim having to pick up the tab for almost 80% of the damage done to her by a sexual predator, or the victim of medical negligence having recovery limited by the dedicated ideologues of big business lobbying interests, tort reform is bad for victims, and good for the negligent and the reckless. The sad case of the Ohio rape victim is the logical result of tort reform: juries have less freedom, victims have less compensation, and wrongdoers laugh all the way to the bank.