A tort reform group has named Delaware the #1 state in terms of legal climate in the country for the 5th consecutive year. Survey respondents assigned each state a grade for of 12 different factors affecting the states’ tort liability system. Delaware ranked at the very top for a host of categories: stringent venue requirements, treatment of class action cases, punitive damages, timeliness of summary judgment, discovery, judge’s impartiality (read: anti-plaintiff), and judge’s competence, and overall treatment of tort claims. The last category is actually “tort and contract cases” although they don’t really care about how contract cases are treated. This is just code for pretending this is not all about tort reform. Delaware did drop to 13th on jury predictability, and a 10th on jury fairness.
I don’t think history shows that Delaware juries are unreasonable. But many Delaware laws both directly and indirectly discourage tort lawsuits. One of my favorite Delaware laws involves lawyer’s fees in medical malpractice cases. Delaware does not place a limit on the damages a claimant may recover. But it caps plaintiffs’ medical malpractice lawyers’ fees at 35 percent of the first $100,000 in damages, 25 percent of the next $100,000, and 10 percent of any remaining award.
This law is great for those medical malpractice victims where they are able to find a lawyer to represent them. But many lawyers do not take medical malpractice cases in Delaware simply because of the decreased fees. It is not unlike Delaware passing a law raising minimum wage to $20 an hour. Some people would really fare well but others would lose their job. With this medical malpractice law, people lose the opportunity to bring just claims.
Moreover, the limit on fees decreases the overall quality of Delaware medical malpractice lawyers. Conversely, because the possible damage awards are unchanged and the exposure is there, negligent doctors and their insurance companies can find the best malpractice trial lawyers to provide their defense, leaving a playing field between doctors and victims that is far from level.