An Introduction To Tort Reform

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What Is Tort?

We should set about defining ‘tort,’ before delving into a discussion of how it has been reformed and the myriad reasons why. Tort is defined as a civil wrong, which unfairly harms another party and creates legal liability for the person who committed the wrongful act (the “tortfeasor”). Certain crimes are considered torts, however not all torts are criminal. The harm incurred by a tort is often the result of non-criminal negligence. The injured party may recover damages for their harm/loss by initiating a civil suit against the tortfeasor. To prevail in the suit, the plaintiff(‘s attorney) must effectively prove that the alleged tortfeasor’s actions directly caused the harm in question. Torts have a lower burden of proof than criminal cases, requiring only a preponderance of evidence as opposed to ‘beyond a reasonable doubt.’

Tort suits are not limited to physical injury; their breadth includes emotional, economic and repetitional injury as well as privacy, property and constitutional violations. Tort liability may be classified as intentional, negligent or strict. ‘Intentional tort’ is committed with an awareness that the actor could feasibly harm another. In cases of ‘negligent tort,’ the actor departed from a reasonable duty not to harm the other party but did not necessarily act intentionally. ‘Strict liability’ is a matter of contract violation, and allows for monetary recovery without a need to demonstrate negligence. For cases involving defective products or toxic exposure, a mass tort suit may follow – in which case there is a variety of claims housed in a single suit. Allocating compensation becomes more difficult in these cases. While a majority of tort suits seek redress for injuries that did not involve contractual obligations, medical tort cases are distinct in that they almost always arise from an explicit breach of contractual obligation.

History of Tort Law

Like so many aspects of United States law, tort law has roots in English common law. Any discussion of the English influence over American law sees mention of English jurist William Blackstone, who penned Commentaries on the Laws of England in 1765. Blackstone’s legal treatise was heavily reprinted and distributed throughout the United States, playing a decisive role in the development of the US legal system. The work is a thorough, moderate and elegant exploration of legal right and wrong, with the final two volumes devoted exclusively to the distinction between private and public wrongs. Despite the rigorous exploration of law laid out in Commentaries, tort was not a distinct subject within the piece. In fact, tort did not come into focus as its own body of law/type of suit until almost a century later. Blackstone’s interaction with tort begins and ends with his identification of “a residual category of noncriminal wrongs not arising out of contract.” The first treatise on torts in the United States was published in 1859, with the first tort casebook appearing in 1874.

The emergence of tort law is usually positioned, at least in part, as a response to industrialization and the newfound social condition it gave rise to. Some scholars take issue with exclusively attributing the advent of tort law to the needs of a nascent industrialized society. The actual circumstances that brought about tort law, some contend, are far more complicated than a simplified ‘response to industrialization.’ Industrialization did permit far more interaction – and opportunity for accidents – between strangers. The risk of personal injury also ballooned at this time, with more people employed in risky working environments that lacked the regulation/safety codes of the modern day.

Despite this arguably causal relationship between industrialization and the rise in tort suits, scholar G. Edward White contends that the emergence of tort law “owed as much in changes to jurisprudential thought as to the spread of industrialization.” This is a credible point. The rise of tort law hinges on whatever disposition the people adopt toward the idea of filing suit – and recovering damages for an injury. If this contention – that an injured party can and should file suit against the wrongdoer – the very basis of tort law, is not viewed favorably or considered viable by the general public, tort suits would have never gained traction. In other words, the popular attitude toward an individual’s right to compensation was critical to the development of tort law. A move toward industrialization alone would have been insufficient to constitute the necessary social landscape that would give rise a discrete system of tort litigation.

Elements of British Tort Law Adopted by the United States

Newly independent America proved to be fertile ground for the development of a thriving tort system for a number of reasons. No longer encumbered by a static perception of man’s place within a social hierarchy, America was inclined to a more liberated perception of man as a dynamic actor within society, empowered and emboldened by his own personal agency. In the half century following the signing of the Declaration of Independence, “Americans became increasingly enamored of New World privileges such as individual freedom, social equality and occupational mobility…which emphasized man’s potential to alter the conditions under which he might exercise his capacity for achievement,” according to White.

The era came shortly after the European Enlightenment, which espoused the idea that man’s fate and fortune was not the will of an omnipotent God – and man needn’t be resigned to his lot in life. A changing intellectual landscape that favored man’s agency and did away with complacency on the grounds of religion and hierarchy, set the stage for the emergence of a body of law in which man would firmly assert not only his right to personal safety but also other’s duty to provide it to him. There was now a marked inclination toward “audacious self-reliance” and personal responsibility. American society, and the rise of tort law were shaped by this “growing awareness of the value of individual autonomy.”

The budding American legal system contained a smattering of laws at once dissonant, diverse and chaotic. Similarly, as tort law took shape, it began as a mere collection of unrelated writs (informal written orders issued by a court, dictating the guidelines for litigating for such cases). Lawyers had an intuitive sense of how to sue for tort, though few were interested in the abstracts of tort theory. Irritated with the haphazard nature of a legal writ system, select states got down to the task of revising, reforming and streamlining it. The hand of revisionist impulse helped guide the formal construction of the tort system.

In mid 19th-century American tort cases, the plaintiff had to go to great lengths to prove the defendant’s actions had caused their injury, working within the legal framework and terminology of the time. It was not the (relatively) efficient and streamlined system of the modern day. An injury was shown to have been directly caused or indirectly caused by the defendant’s actions. If the plaintiff could make a successful case for causation, he had a fair chance of winning his tort case.

The writ system was dissolved in the mid 19th century as it lacked functional, structural and doctrinal organization. Its abolition spoke to a growing communal desire for a system of law pervaded by immutable principles, and not obscure particulars, established in a patchwork of writs that were introduced with no concern for their interrelation. By the 1870’s, academics were grasping for the overarching theoretical principles of this manifesting tort system. Legal scholar Oliver Wendell Holmes made the significant contribution of elucidating the concept of negligence and its role in the tort system. Holmes scholarship distinguished negligence from “neglect” of a select, predetermined duty, pinning it down to a legally serviceable definition of wider breadth: “violation of a more general duty potentially owed to all the world.” A duty owed by all to all.

Modern malpractice cases, as mentioned, do additionally entail “basic positive obligations to honor contracts which have been freely negotiated.” While modern tort suits are typically disputes over a breach of a ‘general duty owed all the world,’ medical malpractice cases remain uniquely and unwaveringly contingent on the breach of an explicit, contractual duty. With the conceptual elucidation of actionable legal carelessness (negligence) as a totem of the tort system, its contours, facets, and function began to take shape.

Modern Tort Law

Tort law in its modern form came to fruition throughout the 20th century, but even attempting to classify a “modern form” of tort law is troubling. Narrowing our focus to medical tort: despite each state consistently adhering to certain uniform requirements – a certificate of merit, arbitration, expert witnesses, establishing negligence, a standard of care – the greater picture of medical tort law is conflicting and chaotic. History repeats itself: after nearly two centuries untangling the form and function of tort law, it seems the country has come full circle. Yet again, we preside over a “patchwork” body of tort law. The legal and scholastic understanding of tort is infinitely more sophisticated today than in the 19th century, but again we have fallen prey to the ‘patchwork’ affliction. This is due in part to the wave of tort reform when many states took shears to their existing tort laws and reconfigured the system. The central aim of reform was to rein in a (perceived) epidemic of unfettered tort suits and skyrocketing damage payouts.

Tort Reform

At its best, tort reform is an evenhanded effort on the part of lawmakers to moderate the extravagant costs of excessive tort litigation. They achieve this, ideally, by putting fair obstacles in place to file a claim and by limiting the damages an individual can recover should they win. At its worst, tort reform is a euphemism for ‘corporate welfare.’ Limiting the overall number of suits could limit the number of rightful suits. Although this may reduce the costs of corporate liability, it is a detriment to the injured consumer (including the “consumer” of healthcare). State lawmakers contend with difficult questions: how to curb an excess of tort claims, weed out the frivolous, buoy the credible, and minimize the cost of paid claims – without infringing on the individual’s right to fair compensation and justice within the legal system. After almost two centuries of legal posturing and postulating about the meaning and nature of tort law, it was time for lawmakers to take a long hard look at what they had come up with, and skim the fat.

Damage Caps

Every state has taken a personalized approach to the “best practices” of tort law. Confronted with mounting healthcare costs, critics pointed to medical malpractice suits as a chief culprit of unaffordable care. In the span of roughly two decades, many states released medical tort reform acts, delineating new limitations and caps on such suits. One of the most pervasive themes of tort reform state to state was the presence of damage caps. Damage caps are founded in the logic that human suffering has some finite border, and there is a corresponding monetary limit to the conceptual limit of suffering – no matter what injury occurred. The law presumes that no amount of suffering could possibly surmount this legally-defined monetary apex. The nature of damage payouts requires the law to financially quantify human suffering, but if there is a limit to the compensation an injured plaintiff can receive, the law now presumes it can dictate the limits of human suffering.

However ethically presumptuous or troubling this logic may be, caps are widely implemented because of their perceived positive impact on the greater good. Damage caps do not deny compensation, they only serve to reasonably limit it, in the interest of the public and their access to affordable healthcare. Damage caps range from $250,000 to upwards of $1 million. Some states impose no damage caps at all, having found that they violate their state constitutions.

Tort reform acts describe at length the stringent requirements of expert witness testimony and expert accreditation of claims. They also impose carefully considered statutes of limitation, reasonably limiting the amount of claim a plaintiff has to bring a claim forward, giving special consideration to injured plaintiffs who may not become aware of their injury until sometime after treatment. Reform acts also carefully cover the issue of informed consent, explicating the situations in which it is required and when it is waived. By creating these airtight guidelines for medical malpractice, lawmakers tried to create (separate) efficient, fair and cost effective medical tort systems, with variant success. Some critics hold that many injured claimants are the “victims of tort reform” systems that unduly deprive them of rightful damages in the name of corporate financial interests.

Another hot button issue of tort reform is alternative dispute resolution. The Affordable Care Act made almost no mention of medical malpractice except where ADR was concerned, stating a concrete desire to fund ADR projects and to promote it as a more common avenue of resolving tort claims. Exponentially cheaper than formal litigation, ADR panels informally mediate between the opposing parties. Settlements reached via ADR curb the exorbitant costs of litigation, while still reaching a fair resolution to a claim.


White, G. Edward. Tort Law in America: An Intellectual History. N.p.: Oxford UP, 2003. Print.

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