We welcome our second guest post, contributed by Publicola, a friend of THE WHIG:
On Friday, October 3, 2009, the local news in Houston reported that a lady now faces jail time for a felony. Her crime was texting while driving. While exiting a freeway, she was allegedly texting on her cell phone when she ran into another car. A man in the other car was killed when he was ejected from his car.
While I agree that Jeri Dawn Montgomery should be held accountable for her actions, the forum in which she was tried for her conduct is simply wrong. Is texting while driving negligent? You bet. Is it gross negligence? Possibly. However, is it a crime? No. Every bad decision you make should not be turned into a criminal matter. This case is a textbook example of how important the civil justice system is to a free society. It is also a textbook example of how tort reform is destroying freedom in this county.
One aspect of individual freedom is being able to make your own decisions. Learning involves making bad decisions, suffering the consequences, and changing your behavior. Ms. Montgomery made a bad decision. This lady should have been tried in a civil court for her mistake. Her life does not need to be destroyed because of a criminal trial. However, tort reform has changed Ms. Montgomery’s life. Tort reform, which is funded predominately by insurance companies and big business, has diminished the civil justice system to the point where legal matters that used to be civil in nature are now criminal. This is because tort reform has severely damaged an individual’s ability to seek compensation for their injuries.
The primary reason for our civil legal system is so we don’t have to resort to vigilante justice when we are wronged. In other words, we all agree that, instead of going to our neighbor’s house with a shotgun when they wrong us, we will instead seek justice through legal means. However, when individuals are not able to seek compensation through the civil justice system, as is the case now under tort reform, it is understandable that they will instead look to the criminal justice system for vindication. This is a fundamental change in the American justice system.
Since tort reform emphasizes criminal trials (at our expense, as tax payers fund criminal trials), it diminishes freedom because it centralizes prosecution of wrongs. Civil lawsuits are filed by individuals, not governments. Criminal lawsuits are filed exclusively by the state. The civil system allows individual citizens to rectify individual wrongs. In other words, the individual is free to decide to pursue someone in a court of law. However, the criminal system requires the government to determine that it has been wronged by someone’s conduct. The victim is no longer able to make the choice to seek justice. Furthermore, the wrong is punished through jail time, and there are other negative effects on someone’s life. For example, a criminal record hurts if you try to get a job or apply for college.
Another recent case shows how tort reform is turning civil matters into criminal lawsuits. Texas courts recently held that a child, whose arm was permanently disabled because of the doctor’s drug use, should be sanctioned for filing a medical malpractice case. Even though the doctor’s medical license was later suspended; even though the doctor was on drugs and could not order a C-section; even though the doctor was so drugged up that he was evicted from multiple residences, the courts held the drugged up doctor should be awarded sanctions against the child because no “expert report” was “served” on him within the 120 days after the lawsuit was filed. This could not occur because the doctor was being evicted from apartment complexes so quickly that the family could not find him. The “expert report” was filed with the court and sent to the insurance company well before the 120th day. Tort reform has turned drug abuse into an absolute defense to any civil case. This is what we bought when we voted for tort reform.
Of course, now the only justice for this family is if the government decides to prosecute the doctor, assuming the statute of limitations has not run out. In any event, because of tort reform, the family is no longer free to decide what to do. They must rely on the government. That is not the only way government will be a permanent fixture in their life. In order to carry the burden of the lifetime of accommodations because of their child’s disability, the family most likely will have to look to public assistance, such as social security. This is funded by taxpayers. Now, instead of the wrongdoer paying the consequences, society does and the doctor’s insurance company gets a windfall at taxpayer expense. Tort reform does not save society any money, it only changes who pays.
From the perspective of any rational human being, negligent behavior resulting from drug use is matter for the civil and not the criminal courts. However, insurance companies have achieved their goal of changing this in the law. Now, if you are injured because of someone else’s drug use, the drug user is entitled to sanctions because you have filed a “frivolous” civil lawsuit. And the insurance companies are the biggest winners of this change as they sit back and count the money they reap because of tort reform. Tort reform has provided insurance companies with huge incentives to fight civil cases. While they are fighting civil lawsuits, they can put future settlement money into a reserve, sit back, and earn money on the investment. If they can double your money in two or three years, why not try to hold off on civil settlements? That way the insurance companies can at least come out financially even. Even better, there is always the possibility that the judge will throw out the case on a technicality; why not take the chance?
Tort reform has pushed civil cases into criminal court. In the texting while driving case, justice should have come from a civil jury telling Ms. Montgomery that this man’s death should not have happened. The civil jury could have told her this man still should be able to celebrate holidays with his family. Now that insurance companies have demolished the civil justice system, we can expect to see more of these types of prosecutions. Talking to someone else in a car, taking a sip of coffee, singing along with the radio, and other momentary lapses of reason will be treated like drunk driving. On any given day, a simple mistake while driving a car can end your life as you know it.
Our country is built on individual freedom. Government exists as a means to secure and protect our freedoms. Government is not an end in and of itself. Tort reform has traded in our individual freedom to pursue justice at the civil court house. In exchange, the power to pursue justice is now reserved solely for the government. Only the government can decide if someone has been wronged, and only government interests can be vindicated in court. We have given up this freedom so that insurance companies can get a windfall and pay out extra bonuses. That’s not a fair trade.