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The Facts About 'Tort Reform'

Posted: September 15, 2010

In the United States there is a perception we are a “litigious” society and our courts are overflowing with “frivolous” lawsuits. This perception is behind a movement for tort reform: changes in the court system that would limit the awards for personal injury and medical malpractice lawsuits.

The reality is that tort cases (lawsuits against a company or person who has caused another person harm either on purpose or due to negligence), make up only 6 percent of the entire civil court caseload.

“Advocates of tort reform say that lawyers have a financial incentive to file frivolous cases, because they receive approximately 1/3 of the amount awarded in each case,” said Christopher C. Kerr, the firm’s senior partner handling Personal Injury cases. However the opposite is probably true: since lawyers are only paid a percentage if the case is successful, lawyers are very selective in the cases they accept. Additionally, this contingency fee system provides middle class and poor people equal access to the best attorneys by not requiring them to pay attorney’s fees up front.

Reform advocates and the media have also perpetuated the myth that there are too many lawsuits by sensationalizing certain cases.

“Most people remember the case where the 79-year-old woman sued McDonald’s when she spilled hot coffee on herself and she was initially awarded $2.7 million in punitive damages. This award was meant to punish McDonald’s for callous and willful misconduct,” Kerr said. “The trial judge later reduced the amount to less than one-fifth of the original jury award. Later, when the woman accepted an even smaller amount in a confidential settlement, the media barely reported it.”

The truth in this case, Kerr said, was that McDonald’s had continued to serve coffee at 180 to 190 degrees even though it had seen warnings published by the Shriner’s Burn Institute in Cincinnati stating that hot beverages should be no more than 130 degrees. They were also using cheaper cups than recommended, and had already had complaints from 700 individuals (including infants) who were burned by their hot beverages. Despite these warnings, McDonald’s made no changes. Subsequently, the plaintiff in the case was injured, with third degree burns over 16 percent of her body. She was hospitalized for eight days, and endured skin grafts, scarring and disability for more than two years after the incident.

Though sensationalized, this was not a frivolous case.

According to the Rand Institute for Civil Justice, each year one in six Americans sustains an injury serious enough to cause some economic loss. Only 10 percent of those injured file any type of claim including informal demands and insurance claims, and in the end only two percent actually ever file a lawsuit.

Without lawsuits we would not have the standard workplace safety requirements and the limitations on corporate behavior that are now in place. McDonald’s would still be serving coffee at 180 degrees in cups that were designed to hold a hot beverage at 130 degrees.

“Tort reform caps ignore how much merit a case has, the severity of the victim’s injuries, and the extent of the defendant’s misconduct. Those who will be hurt the most by tort reform are those who suffer the most catastrophic injuries,” Kerr said. “Our jury system should be allowed to continue to provide fair trials for victims in civil cases.”

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