The Chicago personal injury attorneys of Passen & Powell have long railed against the misguided efforts known as “tort reform.” Now, a provocative new article in the Washington University Journal of Law & Policy discusses, for the first time, the racism lurking behind many so-called “tort reforms.” The article, by Joanne Doroshow and Amy Widman of the Center for Justice and Democracy, a non-profit organization devoted to protecting the American civil justice system.
The article examines the disparate impact that many typical tort reform strategies have on racial and ethnic minorities. It also brings to light the fact that proponents of tort reform have deliberately hidden racial issues while advancing this agenda.
As an example, the most common “tort reform” proposals center around medical malpractice. This type of tort reform aims to prevent victims from recovering their full damages, either through caps on damages or non-economic damages, by removing these cases from the jury system, or otherwise. What is generally not discussed in connection with these proposals, however, is that they overwhelmingly impact minorities rather than non-Hispanic whites.
This is the case for many reasons. First and foremost, U.S. Caucasians have greater access to quality medical care. Studies have demonstrated that hospitals serving minority populations have higher rates of adverse events and medical negligence than those serving predominantly whites. Minorities are also far less likely to receive appropriate care, including proper treatments, cardiovascular care, diabetes care, kidney transplants, maternal and pediatric care, and cancer screenings.
This lesser standard of care, and in turn the higher incidence of medical negligence, also springs from a difference in access to health insurance. Minorities are simply far more likely to be uninsured than non-Hispanic whites. Some consequences of this disparity are obvious, others are not. For example, the uninsured are more likely to rely on urgent care and hospitals for care, and error rates are higher at such facilities. It remains to be seen whether the recent health care reforms, discussed by our Chicago medical malpractice attorneys in prior articles, will have any meaningful impact on this disparity. For now, however, it is certainly the case.
Minorities are also more likely to be impacted by limits on non-economic damages (compensation for pain and suffering). This is true because minorities are still statistically lower wage-earners, and thus unlikely to have the same level of economic damages as U.S. whites. These types of limitations also disproportionately affect women, and prevent meaningful recovery when a child is injured or killed.
Likewise, class-action “tort reform” has a profound impact on minorities that is inapplicable to white males. This is because class actions are the most common vehicle, and often the only appropriate one, for bringing discrimination claims. As the U.S. Supreme Court itself has stated, “suits alleging racial or ethnic discrimination are often by their nature class suits, involving classwide wrongs.” East Tex. Motor Freight Sys., Inc. v. Rodriquez, 431 U.S. 395, 405 (1977).
The article also analyzes the actual data on “hellhole” jurisdictions – jurisdictions identified by any number of tort-reform proponents, using anecdotal evidence or surveys, as being unfair, or having juries who are “out of control” in their awards. Although different organizations identify different jurisdictions, they have one thing in common. A disproportionate number of these jurisdictions have “minority” populations that are actually the majority of the citizens, even when the surrounding state is majority white. Yet when the authors analyzed the actual data of the awards in these jurisdictions, what they found was shocking: the results and awards in these jurisdictions are actually no different than the rest of the nation. The authors theorize that the perception of these jurisdictions as unfair actually springs from subtle or subliminal racism: lawyers perceive the same results as more egregious when delivered by a minority jury.
These are just a few of the areas of racial discrepancy identified and discussed by the authors. To the experienced personal injury lawyers of Passen & Powell, this is just one more reason why “tort reform” should be soundly rejected. Tort reform is cruel and unfair on an individual level, as its openly avowed purpose is to prevent victims from (or at least make it more difficult for them to) recover their full damages, or even to keep victims from reaching the courthouse at all. What this article demonstrates is that the cruelty and unfairness of tort reform operates on a broader scale as well, as it disproportionately affects the rights of minorities.
For a free consultation with an experienced Chicago personal injury lawyer at Passen & Powell, call us at (312) 527-4500.