Our Chicago brain injury attorneys closely follow the legislative debates surrounding so-called “tort reform” laws, because we realize that they have a very real effect on the lives (and legal rights) of our clients. In general these laws come in three flavors:
1-Thoes that take away rights after a lawsuit has been won (i.e. medical malpractice damage caps).
2-Those that make it harder or a plaintiff to win at trial (i.e. limit on who can testify in a medical malpractice case).
3-Those that make it harder for plaintiff’s file a lawsuit altogether (i.e. added requirements before a case can move forward).
Damage caps are likely most familiar to community members, because they have garnered the most headlines over the years. However, all three forms are incredibly dangerous for the vast majority of community members. At the end of the day the courtroom is supposed to be one of the few places where money, title, power, and influence have no bearing on the proceedings. What is supposed to matter is simple truth and justice. If someone’s negligence hurt another, the court is supposed to be the place where the evidence is rooted out and the wrongdoer pays for the consequences of their actions. It matter not whether the defendant is a famous face or a big business.
Tort reform efforts seek to change that. These laws are promulgated by the very big interests who are not accustomed to having to deal on a level playing field with ordinary consumers. Our Chicago medical malpractice attorneys believe that these interests support these laws mostly because they represent a way to shortcut the system and not be forced to deal fairly with victims. The net effect of every single tort reform effort is to keep even more money in the pockets of those with the most money to begin with, preventing them from providing fair redress even when their unreasonable conduct hurts those around them.
To fight these efforts we essentially have two choices: prevent the laws from being passed to being with and, if they are passed, explain to high courts how these laws violate fundamental constitutional principles. It is important to keep the effort up on both fronts, because both arguments are strong.
For example, just last week the Arkansas Supreme Court struck down one tort reform provision for violating the separation of powers doctrine in the state’s constitution. The issue in the case related to a provision passed in the state which required experts in medical malpractice cases to have the exact same specialty as the defendant. In practice this could be an immense burden for plaintiff, because it is not always easy to find medical practitioners who also testify in certain areas. Doctor could be supremely well qualified to testify about a certain course of conduct, but if they happened to have a different background in certain respects from the defendant, then that expert could not testify.
The court already has a system in place that actually looks at each case individually to determine whether or not the expert is qualified to speak on the matter. This individual analysis is far superior to some arbitrary disqualification imposed without any analysis at all about the individual merits of a case. Fortunately the state court recognized this inappropriate breach of legislative power and struck the law down.
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