A great article appeared in the LA Times about how tort reform creates a judicial system that discriminates against the poor and the elderly. Â You can read the original article here.
As bit of background, when an attorney decides to take a case there are multiple considerations. A major consideration is the amount of damages that could be recovered. Simply put, damages can be thought of as economic (based primarily on how much the person was earning at the time of the accident) and non-economic damages. Non-economic damages include recovery for “pain and suffering”. Tort reform focuses on limiting the amount of recovery for pain and suffering through caps. For example, if a jury returned a verdict for $1,000,000.00 for pain and suffering in a state with $300,000.00 cap than the verdict will be reduced to $300,000.00.
The thing is caps on pain and suffering do not rise with the costs of litigation. Therefore, damages critical to determining whether or not an attorney will take a case in a state with caps on non-economic damages.
As a result, individuals that were not earning much when they were injured in a state with caps will not find legal representation. For example, a cashier working for $12.00/hr gets paralyzed by a drunk driver in a state with caps on pain and suffering. As a result of the caps, the amount of money that she can recover is tied closely with the amount of money she could make over the rest of her “working life”. At $12.00/hr that could only amount to a few hundred thousand dollars. With the costs of trial and living rising substantially, attorneys will not take a case where the economic damages are not substantial thereby excluding our paralyzed cashier and the rest of the working poor and the elderly from the legal system. Is that fair? Is it fair that insurance companies who provide medical malpractice insurance to doctors show increased profits year after year and pay out less and less while raising premiums?