A Dangerous Misnomer 

A Dangerous Misnomer

Perhaps the most mislabeled of all legislation is that which goes by the name of "tort reform." Indeed, the term itself is almost Orwellian in its capacity to signify the exact opposite of what it appears to suggest. The word "tort" basically means "wrongdoing." To reform a tort, then, would be to control, discourage, confine, punish, or eliminate it. But the kind of tort reform that continues to be advocated -- and, from time to time, enacted in Washington or in a state legislature -- is basically designed to control, discourage, confine, punish, or eliminate legal efforts to combat torts. In other words, to make them illegal.

The special interests and right-of-center types who advocate tort reform would have us believe that holding those who deal with the public accountable for their actions -- specifically, for their misdeeds -- is somehow an expensive luxury the public cannot afford. Hence the periodic move to place caps on the damages that can be realized by a plaintiff claiming injury from a product or a professional service. In Mississippi a couple of weeks ago, a presumably well-meaning Governor Ronnie Musgrove was induced to sign into law a measure placing a cap of $500,000 on noneconomic, or "quality-of-life," damages to an individual resulting from medical malpractice. The rationale, as always, was to control "spiraling" insurance costs and to stabilize medical care in an area in which doctors were presumably ready to saddle up and emigrate otherwise.

Similar rhetoric is forthcoming when other types of tort reform are urged -- in product-liability cases, for example. Always cited as an object lesson is the famous case of some years ago in which an elderly woman in New Mexico was scalded by an overheated cup of coffee from McDonald's. She received, in addition to an award compensating her for her injuries (which included third-degree burns), a "punitive" judgment of millions of dollars against the fast-food chain.

Those who ridicule that award for its presumed folly seem not to have read the testimony of the jurors in the case, virtually all of whom said later that they too had been opposed to such an apparently extreme award but came to realize from the evidence presented that McDonald's executives had known full well the hazards of their coffee-making techniques -- mandatory in all their locations -- but insisted on them because their overheated assembly-line coffee kept longer and made sense in economic, if not safety-minded, terms. The only way to force McDonald's into changing its procedures -- presumably dangerous to employees as well as customers -- was to raise the ante beyond the limits that the chains' executives, in their cynicism, had already calculated as likely to come from damage suits. The famously mocked multimillion-dollar coffee-cup judgment was, in fact, a case of bona fide tort reform. The kind now being argued in this or that election campaign is anything but.

At a recent meeting of the Memphis downtown Kiwanis Club, Governor Musgrove was hectored by a lawyer in the audience who went on to ask the governor and the rest of the attendees, rhetorically, how many of them would accept $500,000 as sufficient lifetime compensation for, say, having their spines severed during a faulty operation. There were no takers.


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