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The Discriminatory Impact of Tort Reform

Hospitalized Child Tort Reform You've likely heard the term "Tort Reform" in the media lately along with heavily discussed topics such as trucking safety, automotive recalls, and proposed caps on damages in personal injury and medical malpractice cases. Here is what you need to know about tort reform should you or your family be involved in either a personal injury wrongful death or medical malpractice case.

Tort reform is the name that the insurance companies and big business have used in PR campaigns to create the notion in the public's mind that the personal injury jury system is out of control.  These ad campaigns throw around terms like "jackpot justice" or "runaway juries". These phrases are used to convince the average citizen that the parties in need of protection are the multi-billion dollar insurance companies like State Farm and Allstate rather than the innocent victim of car accident caused by a truck driver who fell asleep at the wheel after driving too many hours in violation of federal regulations.

The case that tort reform advocates love to bring up is the "McDonald's Hot Coffee" verdict from 1994. Most people still do not know the true facts of this case, only what the media presented or are friends told us. Through a skillfully orchestrated campaign, McDonalds turned a 79 year old grandmother who suffered third degree burns requiring hospitalization and skin grafting into the country's most popular punchline as opposed to a victim in need of compassion and support.  Please see here for the true story behind the McDonald's hot coffee case for more on the victim's stance and to better understand the impact tort reform has on the lives of a victim and their families.

Proponents of tort reform seek to place hurdles on the average citizen's access to the courthouse. The most common vehicle used in tort reform battles are caps on recoverable damages. These indiscriminate limits are set by statute and restrict the injured parties' rights to recover for non-economic damages, such as pain and suffering and the loss of a loved one or loss of society.


Damage caps disproportionately impact cases involving non-wage earners such as children, the elderly, and stay at home parents. The unstated but actual purpose of these caps is to close the door of the courthouse to claimants whose cases with a limited recovery are less likely to be pursued by attorneys working on a contingent fee basis.


One of the most baffling aspects of the use of damage caps as "Tort Reform" is that damage caps only affect the person who proves a successful case. To those who think they are "fixing the system" with tort reform, why punish the person who successfully proves malpractice or negligence? Shouldn't the decision of what someone's suffering or loss of a loved one is worth be decided by jury based on the evidence presented to them in open court, not by a one size fits all piece of legislation.


Stay tuned for my next post where we share how Mitchell, Hoffman and Wolf was successful in getting a client's family their rightful judgment in the face of discriminatory damage caps.




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