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Tort Reform from Within

Published online by Cambridge University Press:  28 April 2021

Aaron Gershonowitz
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Extract

Most legislative proposals to solve the so-called malpractice crisis have been viewed by lawyers as attacks on lawyers and the legal system. Consequently, little thought has been given to whether we can find support for these proposals within the tort system. What I would like to suggest is that some of these proposals, including the increasingly popular cap on recovery for pain and suffering, are supported by the way the tort system has begun to look at injuries with several causes.

Initially, the legal system refused to recognize that the damages resulting from an injury could be apportioned among the various causes. Although we always recognized that every event has several causes, the law placed responsibility on “the proximate cause,” often the cause closest to the injury.

One of the first steps toward division of damages among causes was the replacement of contributory negligence with comparative negligence. Contributory negligence provided that if defendant and plaintiff were both negligent causes of the injury, plaintiff collected nothing.

Type
Legal Views of the Malpractice Crisis
Information
Law, Medicine and Healthcare , Volume 14 , Issue 2 , April 1986 , pp. 80 - 82
Copyright
Copyright © American Society of Law, Medicine and Ethics 1986

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References

General Motors Corp. v. Hopkins, 548 S. W.2d 344 (Tex. 1977).Google Scholar
Daly v. General Motors Corp., 575 P.2d 1162 (Cal. 1978).Google Scholar