Is the Sky Really Falling? An Attorney’s Perspective on Tort Reform

By Jason Hendren with Wright, Lindsey & Jennigs LLP (Rogers, AR)

Original Publication in Arkansas Hospitals (AR Hospital Association), Summer 2018 Publication

On November 6, 2018, Arkansans will have the opportunity to vote on “issue 1,” which if passed would put several “tort reform” measures into effect beginning 1/1/2019. Issue 1 contains five proposals: (1) limits on attorney contingency fees; (2) caps on non-economic damages; (3) caps on punitive damages; (4) changes in the way rules of pleading, practice and procedure are governed in civil court cases; and (5) preservation of the right to trial by jury.

By way of background, in 2003, the General Assembly passed the Civil Justice Reform Act (CJRA). In it, the legislature established new laws designed to reform the tort system and hopefully make Arkansas more attractive to companies doing business here. Among other things, these measures changed joint and several liability to several liability only, adopted a process for apportionment of fault among joint tortfeasors, capped punitive damages, allowed evidence of payment of medical bills by third parties, and required an expert “affidavit of merit” in medical malpractice cases. These measures passed with overwhelming support in the Senate (34-1) and House of Representatives (87-8), which comprised of duly-elected representatives of the people.

Initially, the CJRA showed signs of success. For example, medical malpractice filings in Arkansas had been rising and were up to 385 cases in 2003. After passage of the CJRA in 2003, medical malpractice filings decreased to 304 in 2044 and 255 in 2006. (This number increased slightly in 2007 to 285, but remained well below the pre-CJRA levels).

The Arkansas insurance Commissioner reported that “new insurance companies were coming in because they found a friendlier more stable climate since passage of the CJRA. However, some trial lawyers disliked….Please click here to read the article in it’s entirety