Proposed Tort Reform Threatens Right to a Fair Trial: What You Need to Know

Efforts to limit the Constitutional rights of Americans have gained traction with President Trump’s election and full Republican control of the Congress.  In particular, renewed efforts at medical malpractice “tort reform” threaten the Seventh Amendment rights of victims of medical negligence.  Big insurance companies and their lobbyists are also to blame.  While the “repeal and replace” debate keeps hitting the news headlines, these underhanded political efforts to severely curtail the power of the civil justice system are advancing very quietly.

Numerous medical and economic studies show that the efforts to limit our rights will neither improve medicine nor reduce its cost.  A recent New England Journal of Medicine “Perspective” piece addresses this: https://www.nejm.org/doi/full/10.1056/NEJMp1701174. This study categorizes a number of different liability reforms that have been proposed or enacted over the years, and demonstrates the lack of evidence of any meaningful improvement.  Despite the lack of effectiveness in either reducing costs or improving care, many proposed reforms – such as caps on damages, requiring proof of “gross” negligence and others – manifestly harm the right to a fair civil jury trial.

In addition, there is no need for any such reforms, even if they worked.  As stated by the writers at the New England Journal of Medicine:

Many observers may find this an odd time for Congress to be considering malpractice reform. Malpractice environments are currently stable: the incidence of paid claims has shrunk by half in the past decade, indemnity-payment levels have declined or plateaued, and many physicians pay less for liability insurance than they did a decade ago.

So the current efforts become highly suspect, given that the Seventh Amendment is so vital to our democracy.  Why are the politicians now in power pushing for such changes in long-standing law?  We will address this question in a follow-up blog post this month.

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