Book Review: Deforming Tort Reform

The storms buffeting the tort system over the past two decades have come in three distinct waves. In the late 1960s, steep increases in the insurance costs incurred by health care providers protecting against negligence claims by patients triggered what came to be known as the medical malpractice crisis. In the mid-1970s, manufacturers whose liability insurance premiums suddenly soared raised obstreperous complaints that called public attention to the existence of a product liability crisis. Finally, other groups whose activities created risks exposing them to lawsuits found that their liability insurance rates had also risen precipitously. A full-blown torts crisis was at hand. The common law of torts attracted a major share of the blame for each of the three crises. Observers blamed the medical malpractice crisis on judicial decisions that expanded the doctrine of res ipsa loquitur by permitting juries to infer negligence from the mere occurrence of an untoward result following medical treatment, and that recognized a duty of due care by physicians to disclose the risk of treatment to patients. Members of Congress, among others, blamed the product liability crisis on state-by-state variations in rules governing the obligations of manufacturers and sellers. Working groups formed to study the issue found the across-the-board torts crisis attributable to the erosion of fault as the basis for liability and the adoption of rules and practices that were allegedly responsible for undue increases in compensatory as well as punitive damage awards. As a consequence, those adversely affected by rising insurance costs demanded, and often achieved, what they called tort reform. Responding to pressure, states enacted pro-defendant legislative adjustments to common law rules of medical malpractice, products liability, and general tort law. By equating tort reform with unidirectional statutory modification of the common law, its advocates succeeded in investing the term with a politically useful, if skewed, meaning. Until the dawn of the present age of tort-related crises, the notion of tort reform was likely to evoke images of a movement to change pro-defendant common law rules so that injured plaintiffs could more easily win judgments or recover full damages. Indeed, through the first half of the twentieth century, the tort system tended to protect the interests of defendants in general as well as particular categories of defendants. What might be called the old tort reform was partly an effort to rectify these imbalances