Preserving Our Civil Justice System

There is a war waging in this country that has gone ignored for the most part over the last century. Like any war, this is a war for power and money at one end and justice and accountability at the other. This war has been characterized by the insurance industry and those aligned with their interests as a movement for “tort reform”, which seeks to erode the rights and liberties we are entitled to for just, fair and reasonable compensation.

Article 19 of the Maryland Declaration of Rights adopted in 1867 provides: “That every man, for any injury done to him in his person or property, ought to have remedy by the course of the Law of the Land, and ought to have justice and right, freely without sale, fully without any denial, and speedily without delay, according to the Law of the Land.” These rights were created as part of the social contract between government and people for a civil justice system where people could resolve their disputes without the resort to self-help and lawlessness.

With the advent of industrialism and the rise of capitalism at the turn of the 19th Century and in the early stages of the 20th Century, some law makers sought to balance and protect the interests of business with the rights of the public. As just one example, the worker’s compensation system was a result of this compromise between industry and labor unions. The assignment of “fault”, which is characterized with what a court of law usually decides, was eliminated in exchange for an administrative system that determines compensable work related injuries and appropriate compensation benefits. Employers were sold on the idea of a known risk and cost of doing business [largely in the form of insurance premiums] versus the unknown costs and results of jury awards. Even back in the early part of the 20th century the insurance industry launched marketing campaigns to convince the minds of business and industry that jury awards were out of control and harmful to business. Sound familiar?

In this latest chapter and in just about every state and at the federal level, interest groups serving the insurance industry have worked hard to convince lawmakers to place illogical, arbitrary and unjust damages caps on claims for such things as personal injury or death as a result of negligence by doctors, automobile accidents, and product liability claims to name a few. The argument always advanced by the insurance industry is that juries are out of control and exorbitant judgments are causing doctors medical malpractice premiums to rise over 300% and the like. The alleged justification for damages caps is that by reducing the amount a jury can award, costs of insurance premiums can be stabilized and affordable.

Unfortunately, more and more lawmakers have bought into tort reform over the last decade. What the research and data is showing however in most states is that despite the imposition of caps, the rates of insurance have still continued to rise at an alarming rate and the insurance industry is continuing to rake in unprecedented profits despite so called “catastrophic losses” like Hurricane Katrina and a slew of hurricanes that hit the US coast in 2004.

There have even been proposals to limit victims of medical malpractice from access to the civil courts and towards a system similar to worker’s compensation where claims are filed with a “health court” where many of the rights afforded civil litigants in a court of law simply don’t exist. The unfortunate casualties of special interests ends up being health care providers who are squeezed for exorbitant medical malpractice insurance premiums, a health care system where medical decisions are indirectly being made not by doctors but by insurance bureaucrats and the consuming public whose lives and wellbeing are again like 100 years ago, the last consideration.

The Maryland Trial Lawyers Association has worked hard to educate the public about the importance of preserving our civil justice system and ensuring that lawmakers pass good law or block bad law. With the changing political climate in Maryland and in the US Congress, there is great hope that the erosion to our civil justice system will not only be prevented but reversed towards protecting the public. I submit to you that the days of “tort reform” are coming to an end and we are moving forward towards “insurance reform”. You the public have the power to vote and ensure lawmakers preserving our civil justice system are placed in office. You have already spoken in 2006 and I urge you to do so again in the coming elections in 2008.

Gabriel A. Riveros (Coover & Barr, LLC, Columbia) received his J.D. from the University of Miami School of Law. He is a member of MTLA’s Auto Negligence, Medical Malpractice and Nursing Home Abuse sections and can be reached for comments or questions at [410-997-7600] or griveros@cooverbarr.com.