Help

BI’s Article search uses Boolean search capabilities. If you are not familiar with these principles, here are some quick tips.

To search specifically for more than one word, put the search term in quotation marks. For example, “workers compensation”. This will limit your search to that combination of words.

To search for a combination of terms, use quotations and the & symbol. For example, “hurricane” & “loss”.

Login Register Subscribe

Movement began with med mal crisis in early 1970s

Reprints

It all began with the medical malpractice crisis of the early 1970s.

A spike in liability insurance costs led physicians to seek relief from some legal liability they thought had been unfairly imposed upon them. By doing so, they inadvertently gave rise to the modern tort reform movement.

In the intervening 30 years, the tort reform effort has grown into a broader movement that focuses on the problems of the civil justice system as a whole rather than dealing with an immediate liability crisis faced by one sector of the economy. Yet the very nature of tort law-focused as it is on the states-has meant that the movement looks more like an ever-shifting coalition than a monolithic drive toward a single goal.

The focus on tort reform "began with the first medical malpractice crisis, which was in the early '70s, before product liability. There was movement to limit liability," said Victor Schwartz, a longtime tort reform advocate who currently is general counsel of the American Tort Reform Assn. in Washington. Medical malpractice reform played out on the state level, with California's pioneering Medical Injury Compensation Reform Act becoming the standard against which other efforts were measured. MICRA, enacted in 1975, limited the noneconomic damages that may be levied against physicians, among other changes.

At the same time, Mr. Schwartz noted, the federal government became involved in the possible reform of product liability law. A special task force urged the adoption of uniform product liability laws at the state level and insurance reform at the federal level, which led to enactment of the Liability Risk Retention Act, said Mr. Schwartz, who served on the task force.

Attempts to pass a federal product liability law failed repeatedly, though, and "finally Roman-candled when the business community split over a bill that President Clinton would have signed," recalled Mr. Schwartz.

In the meantime, though, "tort reform changed into civil justice reform, and civil justice reform is broader-it goes to improving our civil justice system as a whole rather than limiting rights to sue," he said.

One of the most significant developments in tort reform was the creation of ATRA in 1986. The group came into being in a conference room of the Washington-based American Consulting Engineers Council.

"It was a great way of doing things-you could start fresh," said Diane Swenson, who was ATRA's first staffer and who is now executive vp of the National Assn. of Federal Credit Unions in Arlington, Va. "The one thing I've noticed is, whoever is the trial lawyers' enemy at the moment are the most active members." As a result, ATRA functioned more like a coalition than a "true association," as members came and went, she said.

When Martin Connor succeeded former Republican lawmaker James Coyne as ATRA's president in 1989, tort reformers were enjoying a run of success at the state level, notably in the area of joint-and-several liability, Mr. Connor said. "We had meetings around the country for which people from all the states came in" to learn about strategy, Mr. Connor said, but he stressed that ATRA has never financed state coalitions, instead encouraging members to invest in state efforts.

Tort reform organizations proliferated at the federal level during the 1980s and early 1990s, leading to a scramble for resources, said Mr. Connor. There have been so many different organizations out there working independently, that to speak of "a tort reform movement" is misleading, he said.

While many of the issues remain the same as they were in the early years of the movement, tort reformers have grown more sophisticated, said Sherman Joyce, who succeeded Mr. Connor in 1994 as ATRA's president, a job he still holds.

"The overarching point is that civil justice and tort reform has to be more broadly defined in 2004 than it would have been 10 years ago or 20 years ago," said Mr. Joyce. "The challenge, solutions and whole agenda were pretty narrowly focused on a well-developed menu of legislative initiatives. Today, we're seeing an era of regulation through litigation, new tactics are being used, and it's brought the tort reform movement into the political arena," he said.

"The single greatest challenge is looking at the complexity of the litigation climate and the different responses that are necessary," Mr. Joyce said, "and recognizing that, in some instances, no single response will be a 100% solution."