Tort reform consists of changes in the civil justice system in common law countries that aim to reduce the ability of plaintiffs to bring tort litigation (particularly actions for negligence) or to reduce damages they can receive. Such changes are generally justified under the grounds that litigation is an inefficient means to compensate plaintiffs; that tort law permits frivolous or otherwise undesirable litigation to crowd the court system; or that the fear of litigation can serve to curtail innovation, raise the cost of consumer goods or insurance premiums for suppliers of services (e.g. medical malpractice insurance), and increase legal costs for businesses. Tort reform has primarily been prominent in common law jurisdictions, where criticism of judge-made rules regarding tort actions manifests in calls for statutory reform by the legislature.
Background Tort actions are civil claims for actions—not arising from a contract—that cause a claimant to suffer loss or harm, resulting in legal liability for the person who commits the tortious act. In common law jurisdictions, torts are primarily created through judicial precedent rather than legislation, and tort reform centers on proposals for legislation altering the precedent-based rules of tort law. Scholars and lawyers have identified conflicting aims for the law of tort, to some extent reflected in the different types of damages awarded by the courts: compensatory, aggravated, and punitive. British scholar Glanville Williams notes four possible bases on which different torts rested: appeasement, justice, deterrence and compensation.Williams, G. "The Aims of the Law of Tort", Current Legal Problems 137 As a result of the wide range of rationales upon which the tort system is based and the variety of distinct purposes it aims to serve, criticism of tort law is generally targeted at its failure to achieve one or more of these aims. In particular, the inefficiency of tort law at securing fair and equal compensation for similarly situated plaintiffs and the uncertainty, cost, and complexity it creates for economic actors averse to lawsuits are motivating factors for tort reform advocates.
With regard to torts other than intentional torts, tort law is based on the principle of fault or negligence, requiring the party "at fault" for a particular harm to provide compensation, typically in the form of damages.For instance, a supermarket may not have been safe enough for its customers to shop in by failing to mop up a spillage of yogurt on the floor. Ward v Tesco Stores Ltd 1 All ER 219, where the res ipsa loquitur doctrine was applied where someone slipped on yogurt in a supermarket. An employer may have failed to properly fence off some dangerous machinery, which exposes workers to risk of injury. Summers v Frost 1 All ER 870, on the application of the Factories Act 1961, s.14, saying "every dangerous part of any machinery ... shall be securely fenced." A manufacturer of ginger beer may have allowed a bottle it sells to have become contaminated, which has made a consumer ill. See Donoghue v Stevenson AC 580, where a decomposed snail was found in a soft drink, see Lord Atkin's judgment in particular. Typical harms can include loss of income (while the person recovers); medical expenses; payment for pain, suffering, or even loss of a body part; or loss of future income (assuming that said loss can be proven to be reasonably likely to occur. See speculative damages).A typist who loses an arm suffers a loss to his future job prospects and in the case of fatal accidents, financially dependent relatives may be compensated for the loss of money that their loved one would have provided. Known as "bereavement damages" under the Fatal Accidents Act 1976 in the United Kingdom. The classical purpose of tort is to provide full compensation for proved harm. This is known under the Latin phrase restitutio in integrum (restoration to original state). However, since the emphasis under tort law is on the violation by an individual of a purported duty of care, compensation is determined to a large extent by the extent to which the "at fault" party violated the applicable standard of care with regard to the plaintiff rather than solely by the harm purportedly suffered and distinguishes between negligent and intentional torts (e.g. negligent infliction of emotional distress vs intentional infliction of emotional distress). Consequently, compensation recoverable through tort suits vary even in circumstances where the injury itself is identical, especially when the "at fault" party is judgment proof or merely negligent rather than intentional in causing the purported harm. Consequently, some legal scholars propose to replace tort compensation with a social security framework that serves victims without respect to cause or fault.
Proposals for tort reform primarily centre on addressing perceived deficits in four areas of tort law: personal injury lawsuits, medical malpractice, product liability, and defamation torts (i.e., libel, false light, and slander). Additionally, the emergence of absolute liability and constitutional torts in Indian tort law has become a focus of tort reform. While similar reforms may be proposed for all these areas of tort law, the debate surrounding each tends to remain separate, with the debate surrounding purported abuse of the defamation tort system generally discussed separately by policymakers addressing SLAPP lawsuits.
Defamation law
Defamation suits, particularly when brought by a large organisation or wealthy individual against a less wealthy critic, may serve to censor, intimidate, and silence critics by burdening them with the cost of a legal defence until they abandon their criticism or opposition. As a result, many jurisdictions (especially in North America) have enacted legislation incorporating elements of common tort reform proposals specifically with regard to lawsuits brought against individuals purportedly exercising freedom of speech. The California Code of Civil Procedure and Ontario's Protection of Public Participation Act do so by enabling defendants to make a special motion to strike or dismiss which, if successful, would terminate the lawsuit and allow the party to recover its legal costs from the plaintiff. Another concern with defamation torts is alleged forum shopping by plaintiffs who seek out jurisdictions with harsher defamation laws and little connection to either the plaintiff, the respondent, or the particular instance of alleged defamation. In response to this trend, the United States adopted the SPEECH Act which expressly limits the enforceability of offshore judgements in defamation cases.
Over the course of the twentieth and twenty first century, tort reform in the area of defamation law has resulted in an expansion of defences, including affirmative defences, available to defendants. For instance, the United Kingdom's Defamation Act 1952 and Singapore's Defamation Act 1957 both provide that if a defendant relying on the truth of a purportedly defamatory statement as an affirmative defence is only successful in proving the truth of part of the allegedly defamatory statement, the defence may still be available if the charges not proved do not materially injure the reputation of the plaintiff.Defamation Act, 1952 (England).Section 8, Defamation Act 1957 (Singapore). Similarly, while there is no corresponding provision in India, Indian courts treat this principle as persuasive precedent..
Medical malpractice Tort reform advocates argue that by limiting the threat of frivolous lawsuits, the medical industry would migrate away from practising defensive medicine. This would reduce the number of unnecessary tests and procedures, typically performed under patient request, thereby reducing the costs of medical care in general. As an argument against the current system, tort reformers link the rising costs of premiums for physicians' medical malpractice insurance to the rising cost of personal and group policy health insurance coverage. California's Medical Injury Compensation Reform Act has been cited as a model for tort reform in health care. Others deny that medical malpractice suits play a significant role in the cost of health care. Including legal fees, insurance costs, and payouts, the cost of all US malpractice suits comes to less than one-half of 1 per cent of health-care spending. Other recent research suggests that malpractice pressure makes hospitals more efficient, not less so: "The recent focus by the American Medical Association and physicians about the dramatic increases in medical malpractice insurance premiums, and their suggestion of a cap on non-economic damages, deserves a closer look. According to Baicker and Chandra (2004), increases in premiums are not affected by past or present malpractice payments, but may increase due to other unrelated factors. Chandra, Nundy, and Seabury (2005) find that the rising cost of medical services may explain the bulk of the growth of "compensatory awards". They also find that the greatest ten per cent of the malpractice payments have grown at a smaller pace than the average payment for the years 1991 and 2003. This means that the "medical malpractice crisis" is not necessarily fueled by the growth in malpractice payments. Furthermore, malpractice pressure actually forces our hospitals to be technically more efficient. This implies that existence of the medical malpractice system is beneficial, and its strength should not be diluted by either putting caps on non-economic damages or by decreasing the statute of limitations." Some say that federal licensing is a better approach and a strong central regulatory body is the answer to deal with negligent physicians who cross state lines.
According to economist Reed Neil Olsen, "tort law generally and medical malpractice specifically serve two legitimate purposes. First, the law serves to compensate victims for their losses. Second, the threat of liability serves to deter future accidents." Tort reformers maintain that the present tort system is an expensive and inefficient way to compensate those injured.
According to a 2004 study of medical malpractice costs, "program administration—defence and underwriting costs—accounts for approximately 60 per cent of total malpractice costs, and only 50 per cent of total malpractice costs are returned to patients. These costs are high even when compared with other tort-based systems, such as automobile litigation or airplane crashes, that determine fault and compensate victims. Moreover, most patients that receive negligent care never receive any compensation. The Harvard Medical Practice Study found that only one malpractice claim was filed for every eight negligent medical injuries." Of the legal changes proposed by tort reformers, this study found that states capping payouts and restricting non-economic damages saw an average decrease of 17.1% in malpractice insurance premiums. However, more recent research provided by the insurance industry to the publication Medical Liability Monitor indicated that medical malpractice insurance rates had declined for four straight years. The decrease was seen in both states that had enacted tort reform and in states that had not, leading actuaries familiar with the data to suggest that patient safety and risk management campaigns had had a more significant effect.Rising Insurance Premiums? Yes and No. Medscape Medical News, October 5, 2011. Similarly, Klick/Stratman (2005) found that capping economic damages saw an increase in doctors per capita.