Vail Law: What’s a ‘tort’ and how to we reform one?
Vail, CO, Colorado
In the health care reform debate, you often hear passionately discussed the issue of “tort reform.” Tort reform, it is sometimes claimed, will result in cheaper health insurance premiums and thus in more affordable health care people in the Vail Valley and elsewhere.
Despite the questionable claim – tort litigation, in fact, amounts to less than one-half of 1 percent of health care spending – and despite the questionable origins of the tort reform movement – begun as an internal project of the Phillip Morris tobacco company and quickly joined in by others in the tobacco and asbestos industries – one should at least understand the term.
What, then, is a “tort?”
Torts, like contracts or real property, is a category of law. It is a classification of certain types of actions or offenses which are substantially similar to in their elements to fit into a niche which typifies the group.
The word “tort” derives from the Latin “torquere” – to twist – or “tortus” – twisted or wrested aside. I’ll let you draw your own conclusions. It does, however, conjure up to my mind at least, an image of a tug-of-war over legal compensation for a wrong.
A “tort” may be defined as a private or civil wrong or injury (as compared to a criminal wrong or injury prosecuted by the public or the state), other than a breach of contract, for which the court will provide a remedy in the form of an action for damages. In essence, “torts” is the law of personal injury.
The three elements in every tort action are: The existence of a legal duty from the defendant towards the plaintiff, breach of that duty, and damage as a proximate (or direct) result or consequence of the breach of the duty. The concept of negligence occupies a central place in the law of torts but tort law may also be comprised of strict liability, nuisance, defamation, invasion of privacy, and various acts of commercial malfeasance.
What those promoting tort reform seek is limits on the amount of damages which can be awarded and/or limits to the punitive awards that often accompany a successful action. Some advocates also wish to limit what kinds of injuries can and cannot be sued for. This is often framed as containing or limiting “frivolous” lawsuits.
What should be kept in mind in any tort reform debate, is that the threat of lawsuit is what, at least in part, keeps manufacturers, sellers and others in the stream of commerce “honest.”
Unless the consequences may be substantial, the thinking goes, manufacturers and others will take their chances with faulty or defective products. Without the threat of litigation, oversight in any number of areas may otherwise become lax. It is the fear of potentially significant awards which keeps potential bad actors on the straight and narrow, that keeps them from promulgating another Ford Pinto disaster.
There is also the perspective of the injured party to consider. Shouldn’t one be compensated as fully as possible for one’s injuries, especially if they are substantial or life-changing, particularly if the injured party did nothing wrong? This is not to say, however, that the system can be, and sometimes is, abused.
In the arena of health reform debate, where torts arise is in medical malpractice. Advocates of tort reform promote that if caps are imposed on medical malpractice awards, then well-meaning care providers can not only limit their potential losses but know the parameters of the field they’re playing on. If maximum awards are known and well-defined, then health providers can plan accordingly.
Those opposed to tort reform argue that malpractice pressure, in fact, makes doctors and hospitals more efficient and, in fact, may be a net economic benefit.
While recognized in other legal systems as well, there is absolutely no truth to the persistent rumor that Italian personal injury suits are known as tortellinis, Mexican ones as tortas or tortillas, French as tartes, or Floridian ones as dry tortugas. Sorry, a bit tortuous of me…
Rohn K. Robbins is an attorney licensed before the Bars of Colorado and California who practices in the Vail Valley. His practice areas include: business and commercial transactions, real estate and development, homeowner’s associations, family law and divorce and civil litigation. He may be heard on Wednesday nights at 7 p.m. on KZYR radio (97.7 FM) as host of “Community Focus.” Robbins may be reached at 970-926-4461 or at email@example.com.
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