Understanding tort reform, the discovery rule, and the power of trial lawyers (video)
By TLB Contributing Author: Ken LaRive
A tort is sometimes referred to as a civil crime, but it is not actually a crime until proved. Potential torts can be included in all automobile accidents, medical procedures considered malpractice, many types of libel, and some types of personal injury, but negligence must be demonstrated in a court of law.
Here in Louisiana there are two kinds of tort, negligence and intentional tort. A case in point for the first might be a traffic accident where a person is accused of not paying attention, like talking on a cell phone, and the second tort may be considered to be committed on purpose.
Some DWI might be considered intentional, as it is against the law to drink and drive. Surely, running someone off the road in a rage would be considered intentional, or driving recklessly.
A person who commits a tort is called a “tortfeasor,” and in any case noted above, might be held accountable and responsible for his or her actions in a court of law.
Tort reform then, is any change in law for the same action within a previous court. One might attempt to extend tortfeasor liability, and another to limit tortfeasor liability. In both cases it will directly influence how much money a jury can order a tortfeasor to pay a victim.
With this understood one may see why a Lawyer may want unlimited tort retribution, and a company or institution such as an insurance company might want more stringent tort liability limits.
Unfortunately, in considering tort reform, it seems accurate to state that most times each side does not consider justice or righteousness in changing the law, but their own personal agenda, and that’s the rub. Morals and ethics seem to have very little influence.
Along for the ride in tort reform is something called the Discovery Rule, and any change in this is very important and needs to be understood too. The Discovery Rule centers on when the actual injury was discovered in relation to the accident. There is a time limit to find retribution through rule of law, and this is called the statute of limitations. For instance, when a person suddenly becomes dizzy a year after an accident, requiring medical assistance, a lawyer might argue that the statute of limitation started with the symptoms, and not the accident. Any change in this rule might obscure changes in the Discovery Rule as tort reform is being mandated, and should be looked at carefully as being significant.
To be clear, the Discovery Rule centers on when the actual injury was discovered or when the injury should have reasonably been discovered, and the statute of limitations is adjusted accordingly.
Here is Louisiana’s Statutes of Limitation:
Statute of Limitations: One Year. LSA-C.C. Art. 2315.2.
Does discovery rule apply?
No. LSA-C.C. Art. 2315.2
Who has the right to bring suit?
Spouse and/or child or children; if none, by surviving parents or parent; if none, by surviving brothers and sisters. LSA-C.C. Art. 2315.2
Statute of Limitations:
One Year. LSA-C.C. Art. 3492.
Does discovery rule apply?
Yes. Beth Israel v. Bartley, Inc., 579 So.2d 1066, (4th Cir. 1991)
Ken LaRive – Facets: It’s a simple but beautiful metaphor. Our soul is likened to an uncut diamond, pure, perfect, and unrealized. Each learned experience cleaves a facet on its face, and leaves it changed forever. Through this facet, this clear window, new light, new questions and ideas take shape and form. This process is our reason for being …