National tort reform outlook is good

By Steve Stanek | Nov 22, 2004

Prospects for significant legal liability reform in 2005 look good nationally, say tort reform advocates.

Prospects for significant legal liability reform in 2005 look good nationally, say tort reform advocates.

However, do not expect significant reforms in Illinois--despite the Nov. 2 election victory of Republican Lloyd Karmeier over Democrat Gordon Maag for a seat on the state supreme court, and Maag's additional failure to retain his seat on the 5th District appellate court--the same advocates say.

Lisa Rickard, president of the U.S. Chamber of Commerce's Institute for Legal Reform believes the re-election of President Bush and gains in the number of pro-tort reform Republicans in the U.S. House and Senate improves the prospect for tort reform.

"There will be a focus (at the federal level) next year on tort reform," Rickard said. "President Bush has already announced his intention to pursue medical malpractice reform. Also class-action and asbestos litigation reform."

While congressional gains were positive signs for tort reform, political realities remain.

"We still need 60 votes to cut off a Senate filibuster," Rickard said. (Republicans will have a 55-45 advantage in the Senate.) "There will need to be a fair amount of outreach and work with moderate and centrist Democrats. We have a number of Democrats who have expressed concern about certain areas of abuse. The two Michigan senators (Democrats Carl Levin and Debbie Stabenow), who generally have opposed legal reform proposals, have both expressed concern about asbestos litigation abuse."

Rickard said one of the most encouraging developments of the Nov. 2 election was the victory of Republican John Thune over Senate Majority Leader Tom Daschle (D-S.D.), whom Rickard characterized as an "obstructionist" on legal reform issues.

At the state level, voters in several states expressed support for reform measures in the Nov. 2 election. Rickard expects those sentiments to carry into the coming months.

In California, for instance, voters approved (59 to 41 percent) Proposition 64, which has several provisions, including limits on an individual's right to sue a business for unfair practices, unless the person was actually injured and suffered financial loss, as a result.

The proposition also authorizes only the California Attorney General or local government prosecutors to sue on behalf of the public to enforce unfair business competition laws. Monetary penalties could be used only to enforce consumer protection laws.

In Florida, voters overwhelmingly approved (64 to 36 percent) the Medical Liability Claimant's Compensation Amendment, which amends the state constitution to guarantee that a plaintiff will receive at least 70 percent of the first $250,000 in damages that are recovered, and 90 percent of damages in excess of $250,000.

In Nevada, voters approved a referendum (59 to 40 percent) to limit attorney's fees and damages a plaintiff may recover from medical or dental practitioners for professional negligence. Nevada voters rejected (64 to 34 percent) a referendum to control insurance rates and practices, and another (61 to 36 percent) to penalize lawyers involved in vexatious and frivolous litigation, as well as to prohibit certain changes to limits on recovery of monetary damages.

In Oregon, a constitutional amendment to limit noneconomic damages recoverable from healthcare provider negligence or recklessness barely lost, 50.5 percent to 49.5 percent.

In Wyoming, final results are still not known on a constitutional amendment to allow the state legislature to enact laws requiring alternative dispute resolution or medical panel review before a person may file a lawsuit against a healthcare provider for injury or death.

The results of a second referendum, on allowing the Wyoming legislature to enact laws limiting the amount of damages for noneconomic damages, also has preliminary results only.

The Madison County Record is owned by the Institute for Legal Reform, an affiliate of the U.S. Chamber of Commerce.

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