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A Conservative Republican Speaks Out Against Tort Reform

This article in the Tennessean was a surprise to me. Republican former presidential candidate Fred Thompson speaks out strongly in objection to Tennessee imposing a cap on damages in medical malpractice claims. I wish Texas politicians were this wise.

I have been asked why I want to take part in the discussions when the state legislature considers changes to our civil justice system in Tennessee. I am certainly aware of the ideological boxes that advocates like to put folks in when it comes to “tort reform.”

Republicans and conservatives are supposed to be for anything called tort reform. However, I’ve never subscribed to these boxes. Not when I was in the U.S. Senate faced with these issues, and not now.

Some argue that the legislature should tell Tennessee juries that they can award only so much compensation in certain types of cases against certain types of defendants — regardless of the facts and circumstances of the case. I don’t agree with this approach, and I don’t think it’s “conservative.”

To me, conservatism shows due respect for a civil justice system that is rooted in the U.S. Constitution and is the greatest form of private regulation ever created by society. Conservatism is individual responsibility and accountability for damages caused, even unintentionally. It’s about government closest to the people and equal justice with no special rules for anybody. It’s also about respect for the common-law principle of right to trial by jury in civil cases that was incorporated into the Seventh Amendment to the Constitution.

As someone who practiced in the courts of Tennessee for almost 30 years, I believe that a Tennessee jury of average citizens, after hearing all the facts, under the guidance of an impartial judge and limited by the constraints of our appellate courts, is more likely to render justice in a particular case than would one-size-fits-all rules imposed by government, either state or federal.

Our system “ain’t broke.” It is based upon tradition and common law and has provided justice to individuals and businesses alike.

The legislature has made adjustments to our tort law from time to time. For example, in 2008 a law was passed requiring plaintiffs to get a written statement from a medical professional saying that the lawsuit had merit, thereby reducing medical-malpractice suits. This was reasonable and appropriate. However, never has the legislature imposed a dollar limit in cases where damages and negligence have already been proven.

I recognize that several other states have imposed such rules. It’s understandable. The pressure to do so is very strong. That does not make it right or sound policy. Tennessee does not make a habit of simply following a path that has been cut by others. Forty-one states have a broad-based income tax, and I am proud to say that Tennessee does not, and I believe it is much the better for it.

No system ever devised by man is or can ever be perfect. But our civil justice system has served us well, and any substantial changes to it should be made only if the change is needed, fair and beneficial to all Tennesseans. I hope that I can be helpful in discussions that we will soon be having on these important issues.

Bob Kraft

I am a Dallas, Texas lawyer who has had the privilege of helping thousands of clients since 1971 in the areas of Personal Injury law and Social Security Disability.

About This Blog

The title of this blog reflects my attitude toward those government agencies and insurance companies that routinely mistreat injured or disabled people. As a Dallas, Texas lawyer, I've spent more than 45 years trying to help those poor folk, and I have been frustrated daily by the actions of the people on the other side of their claims. (Sorry if I offended you...)

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