How big business is taking away your constitutional rights.

In addition to misleading propaganda, tort reform advocates want to change the way our civil justice system operates. Corporate interests have lobbied legislators at the state and federal level to limit plaintiffs’ access to our courts. Disregarding our nation’s separation of powers, legislatures are rewriting our constitutions at the behest of big business. Though these reforms come in many forms and vary from state to state, we’ve outlined the most popular anti-lawsuit legislation.

The goal of tort reform is to reduce the amount of money corporations and insurance companies pay out to victims. What better way to accomplish that than to legislate how much juries can award to plaintiffs? That’s exactly what damage caps do.

Damage caps typically apply to non-economic damages, sometimes referred to as pain and suffering, but more strictly defined as anything that cannot be monetized the way future wages could be. Therefore, physical pain, distress, disfigurement, loss of enjoyment of life – which extends to sterility, physical impairment, or loss of a loved one – fall under the umbrella of non-economic damages, and therefore could be capped.

Damage caps are not only heartless and unfair, they also may be unconstitutional on several levels. As citizens, we’re guaranteed the right to a trial by jury, but if the jury’s hands are tied by legislation, how is that truly a jury trial? Our Constitution also enshrined a separation of powers that would keep the branches of our government independent. How is it constitutional for the Legislature to dictate how the court operates? Isn’t that a clear violation of our separation of powers? Finally, Americans are entitled to equal protection under the law. Damage caps would treat victims with high non-economic damages differently from those with low non-economic damages, making our courts less fair.

The argument for damage caps is that they’ll end the tort reform created frivolous lawsuit crisis. If plaintiffs can only hope to recover $250,000 at most for their non-economic damages, those with fraudulent claims will be deterred from filing. What tort reform supporters don’t consider is how damage caps affect those with truly catastrophic injuries. Imagine if your child was born without the ability to walk, play, or communicate due to a doctor’s mistake. They’ll never ride a bike, go to college, get married, or have children. They’ll require constant, round-the-clock care for the rest of their lives, leaving you panicked over what will happen to them when you’re no longer around. Does $250,000 sound sufficient to cover your child’s suffering?

Damage caps are unfair and do nothing but benefit negligent doctors, insurance companies, and corporations.

Our lives are governed by contracts. From something as big as buying a house to something as small as signing up for a cell phone, we put our John Hancock on dozens of contracts each year. But do any of us take the time to read the fine print? We should, because many of us are signing away our rights to justice without even knowing it.

We’ve all heard of arbitration, which is the process of settling a dispute outside the courts and with the assistance of an independent third party. However, binding arbitration is a different and dangerous matter. In binding arbitration, you waive your constitutional right to sue, making arbitration mandatory. There are also other qualifiers to binding arbitration that make the process less fair to the consumer. For example, some consumers have later found out that as part of binding arbitration, their “independent arbitrator” has a financial stake in siding with the corporation instead of you, making them less than neutral. Binding arbitration also isn’t subject to the basic rules of discovery, limiting your ability to defend yourself in arbitration.

Binding arbitration is a sneaky way for corporations to head you off at the pass. If they’re likely to lose in court, why not bypass court entirely and create their own? If they behave negligently, they have put in place a system built by them, administered by them, and skewed entirely in their favor.

“Frivolous lawsuits” are the tort reform movement’s biggest bogey man and the alleged motivation behind all of their tactics. Certificates of merit are one of those tactics. The logic is that certificates of merit will prevent meritless cases, particularly medical malpractice lawsuits, from making their way to our courts.

Though certificate of merit requirements vary from state to state, most require plaintiffs to submit a statement from a medical expert certifying that there is a reasonable basis for their allegations. There are several problems with such requirements, from unconstitutionality to unfairness.

Certificates of merit have been ruled unconstitutional in several states. The courts have found that such requirements encroach on the court’s ability to set its own procedural rules, which violates the separate of powers between legislatures and the judiciary.

Courts have also found that the requirement restricts plaintiffs’ access to our courts. It forces plaintiffs to submit evidence supporting their claims without the benefit of the full discovery process to uncover such facts. As a result, experts are forced to give their professional opinions on a claim without access to all of the evidence. Certifying experts have only a plaintiffs’ claims to examine, because defendants don’t typically offer up evidence if they don’t have to. If the expert supports a plaintiff’s claims, and other facts are uncovered during trial, that expert’s opinion is weakened through no fault of his own. Because of these potential consequences, many legitimate cases are never filed because plaintiffs can’t find experts willing to offer their opinion on a case without all the facts.

Certificates of merit are another way for big business and insurance companies to block your access to our courts.

The initial goal of tort reform was to bias juries against plaintiffs. If they could influence jurors against victims and in favor of doctors and corporations, they could influence the outcome of negligence claims. They knew selling a corporate sob story to average Americans wouldn’t be easy, which is why they’ve cloaked the tort reform movement as a grassroots campaign of concerned everyday citizens.

To learn more about the history of the tort reform movement and its origins, click here.

Unfortunately for them, sometimes we “average American jurors” go rogue. What’s more terrifying for a negligent doctor than facing one injured patient? Facing 12 sympathetic people who could have been that injured patient.

That’s where the idea of specialized courts come in. Instead of facing a jury of ordinary citizens, negligent doctors would face a panel of fellow doctors, who would certainly be more sympathetic to their fellow physician.

The premise behind the push for specialized courts is that ordinary jurors are incapable of understanding complex legal and medical information, and therefore incapable of rendering a fair verdict. Despite the fact that our jury system has worked for more than two centuries, we’re now being told by corporate interests that jurors are too dumb to separate right from wrong.

We shouldn’t abandon our Constitution in favor of big business and insurance companies.

If tort reformers can’t prevent your from filing a claim in the first place, they want to control every aspect of your claim from start to finish – even where you can file. Venue reform would restrict where a plaintiff could file a lawsuit, erecting more roadblocks to justice.

Negligence victims face several stall tactics in their pursuit of justice, but the most daunting is the sometimes slow pace of justice. Courts across the nation are facing significant budget cuts that have resulted in staff layoffs and a backlog of cases. Instead of relying on an already overburdened local court, some plaintiffs seek relief in larger court systems.

Larger court systems have several advantages over smaller, local ones. These courts typically have the expertise needed to hear complex cases, and they also have the resources to handle litigation in a timely and efficient manner.

The goal of venue reform is to bog down cases in local courts. Big business and insurers are betting that injured plaintiffs don’t have the time or resources to wage a lengthy legal fight. They rightly assume that victims are more likely to settle for less than they deserve to avoid years of potential litigation. Smaller settlements translates to less justice for victims and more profits for corporate interests.

On the surface, apology laws sounds humane. Disclosing medical errors to patients, along with apologies and offers of compensation, seems like the right thing to do. In return for admitting their mistakes, doctors would receive a waiver that their apology could not be used against them in court. But what seems like a win-win situation for patients and doctors puts injured victims at a considerable disadvantage.

The primary goal of apology laws is to reduce costs and risks to hospitals, health centers, and doctors. A recent policy paper in support of Massachusetts apology legislation confirmed as much. When asked what was most appealing about apology legislation, 74 percent of the policy’s supporters identified its ability to “reduce legal costs/risk.” In contrast, only 37 percent found the legislation’s ability to “serve[s] patients’ needs better” most appealing.

Even though supporters identify strongly with a reduction in costs and risks, they know that won’t win them many friends. The same policy paper emphasizes that supporters need to “emphasize that the motive … is to support patients and provide safer care, not save money.” It seems the public relations team behind tort reform are lending their strategies to apology laws.

And why wouldn’t they? Apology laws are just another form of tort reform. The authors of the Massachusetts policy paper said so themselves. They view the state’s proposed apology law as the first step to forming “a formal strategy to advance legislative changes” that include “additional tort reforms independent [of apology law] itself.”

Apology law is like any other tort reform – it tips the scales of justice against injured victims. Many patients and their families, still reeling from sometimes sudden and catastrophic injuries, are pressured into accepting unfair settlements by trained risk managers. Risk managers have one goal – minimize the cost to their employer – and they’re not afraid to manipulate vulnerable victims to achieve it. If doctors can have the benefit of a trained risk manager, why shouldn’t patients have the benefit of legal advice?

The fact is that many malpractice victims want answers more than they want compensation. They want to know why they were injured, what steps are being taken to make sure it never happens again, and that their doctor is genuinely sorry. That’s why apology laws are so manipulative and misleading. They speak to a shared human need, but they also exploit victims’ emotions.

Joint and several liability is a centuries-old common-law rule. Under joint-and-several liability, if two or more defendants contributed to an injury but one can’t pay, the other defendant or insurer can be held responsible for paying the total damages. But if tort reform advocates had their say, joint and several liability would either be restricted or eliminated outright. The most popular proposed restriction is to hold a defendant liable only for their portion of fault. While that might seem fair, it’s worth it to consider the consequences.

Imagine you’re a construction worker. One day, you’re injured by a faulty piece of equipment. You later find out that the manufacturer knowingly sold dangerous equipment, and your employer ignored repeated warnings about the equipment’s safety. The court finds the manufacturer 60 percent responsible for your injury and your employer responsible for 40 percent. Unfortunately, your employer doesn’t have workers’ compensation insurance and is unable to pay their share of your compensation. What should happen?

Under joint and several liability, the manufacturer would be responsible for the outstanding 40 percent of your claim. However, if tort reformers get their way and joint and several liability is restricted, you would never receive that 40 percent. Your employer is off the hook for your injuries, and you’re left to pay out of pocket for your medical expenses or rely on government assistance, pushing the burden onto taxpayers.

Joint and several liability protects more than just injured victims; it protects taxpayers. If insurance companies and manufacturers can’t be held liable, the financial consequences of their negligence will fall to all of us in the form of increased taxes. Victims unable to pay their medical bills and afford continued lifetime care will be forced to rely on government assistance programs. In the end, without joint and several liability, we’ll pay the difference instead of wrongdoers.

There’s nothing fair about holding victims and taxpayers accountable for corporate negligence.