• Tort reform: Just an effort to shift responsibility Wednesday, April 7, 2010

    If you haven’t already, go check out Jim Marcinkowski‘s op-ed piece in the Detroit Free Press dissecting “tort reform” — what it really is, and what it really means.

    In a nutshell, Marcinkowski, a lawyer and former congressional candidate, argues that corporate and medical proponents of tort reform are really just trying to shift responsibility for their business actions to consumers, or to government. It’s a gambit to reduce the cost of doing business by passing along the responsibility for, in essence, cleaning up their messes. It’s like a kid trying to get the whole street to pay for a window he broke.

    Jim Marcinkowski tort reform Detroit Free Press

    Jim Marcinkowski

    Some of Marcinkowski’s points can be quibbled with. For instance, the argument that lawsuits have driven up medical costs is a canard because “research has shown that over the course of the last decade, both the number of cases filed and the total amount of compensation paid out in medical malpractice have declined.” Well, maybe. But malpractice premiums have increased, which has a direct effect on doctors’ costs of doing business — and the rates they set for providing care.

    But for tort-reform advocates to blame that on lawsuits is a classic game of blaming the victim. There undoubtedly have been cases in which people have tried to game the system, making claims for injuries that didn’t happen. But, as Marcinkowski points out, the legal system has a mechanism in place to weed those lawsuits out, and they form a sliver of the overall number of court cases. (And you have to wonder how often businesses file “frivolous” claims to try to gain an advantage. California has a SLAPP law for a reason.) Legal challenges forcing proper, responsible behavior by businesses is a market mechanism that punishes bad behavior and rewards good behavior — the same tools good parents use to raise their children to do right.

    In a lot of ways, the tort-reform argument is like saying because some people abuse the social-service system, no one should receive help, no matter how badly he or she needs it. Those are political positions in search of proof, and you can prove just about anything with selective use of anecdotes. Go stand on a beach and look out to sea. That world looks pretty flat doesn’t it?

    Marcinkowski’s strongest point is his summation of who bears the responsibility for an injury caused by a product or service:

    The person or entity found responsible for the loss in a legal proceeding pays the person suffering the loss. In the case of a business, this may be looked at as the “cost of doing business,” where the cost of the accident is paid by the business, which in turn spreads those costs to its customers by raising the price of its product or service. In such a “mini-free market” system, lawsuits punish an irresponsible party, forcing either higher prices or even market exit, while simultaneously rewarding a more responsible competitor who, without a lawsuit, can keeps its prices low.

    Now, what’s so unfair about that?

  • Using “tort reform” to shift costs to the public
  • The truth about “tort reform” and corporate immunity in Texas
  • Why a conservative opposes “tort reform”
  • California’s Tort Wars: Election Day by the numbers
  • A conservative attack on tort reform as a “red herring”

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