| SAVE TEXAS COURTS
Vote NO to Proposition 12
by Joseph F. Brophy
Watson Bishop London Brophy, P.C. On September 13 a critical election is being held, which HMO and insurance company lobbyists hope will weaken the Texas Constitution’s Bill of Rights in order to protect their profits. The Texas Legislature passed a resolution (Proposition 12) that will shift the power to decide damages in ALL civil cases from courts and juries to politicians. This means Texas courts will no longer have the power to decide cases . . . politicians will be doing that instead. This is a radical change to the Texas Constitution’s Bill of Rights, pushed by lobbyists for HMOs and insurance companies, and will deprive Texans of their right to trial by jury and access to the courts. Over 160 years ago at Washington-on-the-Brazos, our founding fathers created a wise system of checks and balances, giving judges and juries the power to decide damages in civil trials. The Texas Constitution’s Bill of Rights guarantees each citizen access to our courts. This guarantee of “open courts” (a/k/a the “open courts provision”) is contained in the Texas Constitution, which states: “All courts shall be open, and every person for an injury done him, in his lands, goods, person, or reputation, shall have remedy by due course of law.” The right to trial by jury is set forth in the Texas Constitution in Article I, Sections 13 and 15, and Article V, Section 10. These guarantees--“open courts” and right to trial by jury--can be traced back to the Magna Carta, the Great Charter of English Liberty, signed in 1215. As stated in the Texas Declaration of Independence, the right to trial by jury is “that palladium of civil liberty and only safe guarantee for the life, liberty and property of the citizen.” Proposition 12 doesn’t advertise itself as shutting the “open courts” provision or limiting one’s right to trial by jury. It reads: “A constitutional amendment concerning civil lawsuits against doctors and healthcare providers, and other actions authorizing the legislatureto determine limitations on non-economic damages.” (Emphasis added.) What the language fails to convey is that this radical amendment would cripple the right to trial by jury and give politicians, instead of judges and juries, the power to decide what non-economic damages to award and then prevent judges and juries from deciding whether that limit is fundamentally unfair under the Texas Constitution. Considering the circus we have seen in Austin this session, elected politicians and their lobbyists are the last people Texans should authorize to take the place of judges, juries and courts. Most of us have heard stories about legislation being dictated from the “owner’s box” in the state legislature and we now have a potential scandal concerning the payment of a questionable mold claim to a legislator who is one of the chief proponents of Proposition 12. Supporters of Proposition 12 call it “tort reform,” but the proposal does nothing to stop frivolous lawsuits and won’t help Texas patients and families. Instead, Proposition 12 would protect HMOs and insurance companies by making it harder for Texans to hold responsible the insurance companies, nursing homes, hospitals and the small percentage of bad doctors who account for the majority of malpractice cases. The language “other actions” contained within Proposition 12 allows politicians to restrict what judges and juries can do to hold any wrongdoer responsible for their actions--including, but not limited to, drunk drivers, polluters, manufacturers of dangerous drugs or negligent makers of unsafe tires or other defective products. Further, the limitation on non-economic damages allows politicians and lobbyists to decide the "economic value" on a human life killed, maimed or injured by negligence or wrongdoing. Conceivably a killed or severely injured child, stay-at-home mother or senior citizen could be worth $250,000 or $50,000 or $.50--depending on how high or low politicians determine their “economic value” to be. Former judges and legal scholars disapprove of Proposition 12. Former Texas Supreme Court Justice Deborah Hankinson stated: “Proposition 12 undermines the integrity of the judicial branch as set forth by the founders of the Texas Constitution, taking away the right to decide disputes. It radically alters the distribution of authority between the legislature and judicial branches. I urge every Texan to study this issue, and vote NO on proposition 12 to save Texas courts.” 1 Former Texas Supreme Court Justice James Baker opined: “This current effort by the legislature to alter the checks and balances so carefully put in place by the framers of the Texas Constitution is another step down a road to making our courts inaccessible to Texas citizens.” 2 Former State Bar President, Dallas civic leader, and accomplished attorney, Darrell Jordan, was quoted as saying: “Real tort reform would change our laws to benefit Texans, not HMOs and big insurance. It’s time for lawmakers to focus on settling the medical malpractice insurance crisis . . . and stop working in the Legislature to weaken the judicial system and diminish the rights of Texans.” 3 Brad Toben, Dean of Baylor University School of Law stated: “While the medical malpractice crisis must be solved, it does not require a radical change to the Constitution that would cripple trial by jury, and let politicians decide damages, instead of judges and juries. As a legal expert and scholar, I strongly urge Texans to protect our constitutional rights by opposing this proposed constitutional amendment on September 13.” 4 Recognizing that most Texans would oppose any bill that would handcuff our jury system and reduce access to the courts for ordinary Texans, supporters of the proposal have scheduled Proposition 12 for a “sneak” election on September 13, just 52 days before the general election date of November 4. The only reason one can imagine the Legislature scheduled a September 13 election on this radical proposition, rather than November 4, is to discourage voter turnout. Virtually, every legislative regular session produces several constitutional amendments for voters to consider. With rare exception, those amendments in recent years have been placed on the November general election ballot. But not this time. By scheduling the election for September 13, the Legislature has all but guaranteed a lower voter turnout. Further, under the restricted time frame it will be difficult to convince people they have a vital stake in an election that HMO and insurance company lobbyists have deceptively termed tort reform and mischaracterized as a fight between doctors and lawyers. In short, Proposition 12, attacked by both Republicans and Democrats, would eliminate the checks and balances established in the Texas Constitution by giving politicians and powerful corporate and insurance interests the authority to tell judges and juries what they can and can’t do. This is clearly not what the framers of our Constitution had in mind and is inconsistent with the “separation of powers” doctrine, a cornerstone of our democracy. No agenda and no label can provide legitimacy to any effort to rescind Texas citizens’ right to trial by jury, and to deny them access to the courthouse. For more information concerning bipartisan efforts to defeat Proposition 12 visit www.savetexascourts.com or contact Texans for Civil Justice spokesperson Ron Franklin of Franklin,Cardwell & Jones, PC at franklin@fcj.com.
1 See Save Texas Courts mailing.
2 Id.
3 Id.
4 Id.
| BEST POLICY FOR TEXANS
Vote YES to Proposition 12
by the Honorable Joe Nixon
Texas House of Representatives My guiding principle during the 2003 legislative session was "to establish an equitable and efficient system of justice in Texas that provides meaningful remedies for those who have been wronged and protects the rights of those who have done no wrong". I believe we achieved this objective with the passage of HB4 and that all Texas citizens (as consumers and patients) are the beneficiaries. Having practiced law for over 20 years, I deeply appreciate the importance of access to the courthouse for redress when another is at fault. Nevertheless, access to the courthouse need not be equated with unfettered access to a money vault. While many view tort reform efforts as anti-lawyer and as a direct attack aimed at “greedy” trial lawyers, I do not. I believe most trial lawyers zealously and steadfastly represent their clients to obtain the maximum recovery under the law. Indeed, this is their job and it is what the lawyers’code of ethics requires. But, when litigation begins to take a destructive toll on our society, we as policy-makers for the citizens of Texas must act. I have said often that the essence of civil justice is about how we choose to live together, and I think that sums up my other guiding principle: restoring litigation to its proper role in our society. The medical malpractice crisis has reached dire proportions due to the squeeze felt by doctors who are caught in between rising liability insurance costs on one side and low medicare/medicaid reimbursement levels on the other. Faced with demands to appear in court and at depositions, combined with diminishing income levels, doctors are choosing to retire early or leave Texas. That is frightening. Access to health care is becoming increasingly at risk for all Texans. Dramatic increases in litigation costs and awards have fueled the rising malpractice premiums. Consider the following: 85% of claims against doctors fail, but can cost anywhere from $10,000 to $40,000 per defendant to defend. In 1989, the average non-economic award was $318,666. By 1999, the average non-economic award in medical malpractice cases was $1,379,203.The number of medical liability companies in Texas has dropped from 17 to 4 just since 2000. [Companies don’t leave if business is at all profitable.] Over 150 counties in Texas have no obstetrician. Over 120 counties have no pediatrician. Many counties have no neurosurgeon and no orthopedic surgeon. People are endangered because there aren’t enough emergency personnel to provide care in the critical hours after an accident. Clearly a serious problem exists, and we need to ensure that our best doctors remain in the practice of medicine, and that they stay in Texas. MEDICAL MALPRACTICE DAMAGE CAPS The most controversial provision in HB 4 is the medical malpractice non-economic damage cap. The cap was established at $250,000 for all doctors--no matter how many are sued in a case--and $250,000 per health care institution, up to two institutions. The critical point is this cap only covers non-economic damages: pain and suffering, loss of consortium, disfigurement, and other extremely subjective damages that seek to compensate injuries with money. All actual medical expenses, lost past and future income, and any other expense that can be translated into dollars--such as a driving service or a maid service--are still recoverable. Twenty other states have similar caps on non-economic damages, and a $250,000 cap (regardless of the type or number of defendants) has been in place in California since the 1970s. The key criticisms of this cap attempt to supplant reason with emotion. First, that it “devalues” non-working mothers or low-income folks. This cap does not affect any portion of the economic award, which varies under current law between lower and higher income persons when lost wages are awarded. Rather, to the extent money can compensate for pain and suffering, everyone is treated the same. Second, it is argued that access to courts is cut off and the caps are “arbitrary.” No one is precluded from filing a lawsuit. Access to the courts cannot be equated with unlimited damages for pain and suffering. Non-economic damages are highly subjective and difficult to determine. In the end, all non-economic awards are arbitrary. Asking jurors to quantify pain and suffering into arbitrary dollar terms with no limit is quite different than asking them to make a yes or no factual determination. Even in criminal law, jurors determine guilt and then the punishment is within allowable guidelines set by law. When consumer products are at issue, high dollar awards and legal costs are simply passed on to consumers. However, in the medical malpractice arena, those open-ended jury awards for pain and suffering cannot be pushed onto other patients as easily. Either the doctor’s bill goes up or the doctor is forced out of business. Either way, access to healthcare is diminished or denied. The legislature’s governmental role is to balance competing interests and establish policy. Third, some argue that damage caps of any kind are simply unconstitutional. Interestingly, the Texas Constitution with its “open courts” provision was adopted in 1876, while pain and suffering damages were not awarded by Texas courts (and thereby added into Texas law) until over a decade later. Disfigurement damages were not added until around 1950, and the various loss of consortium damages were not awarded until the 1970s and 1980s. Based on these facts, it is difficult to argue that unlimited awards for non-economic damages are somehow enshrined in the Texas Constitution’s open courts provision. The constitutional amendment for Proposition 12 is the next hurdle to ensure the effects of the medical malpractice reforms are felt in the near-term and not years from now. Those opposing Proposition 12 are already engaging in a campaign of distortion and misleading information calling it an “HMO-backed” amendment. HMO’s are not protected in HB 4 at all, only health care providers are covered. I can only hope that the citizens of Texas, who in numerous polls strongly support caps on non-economic damages, do not fall prey to this campaign of misinformation and deception. Proposition 12 simply affirms that the legislature is the policy-making body of this state, and that caps on subjective, non-economic damages (ultimately paid for by all Texans) clearly fall within this policy-making role. Without this constitutional amendment, the full beneficial effects of medical malpractice reform could be five to ten years away. As a member of the legal profession, I had to put my own profession’s and my own firm’s self-interest second to what I consider to be the best policy for the people of Texas. Many tend to think that defense lawyers are all pro-tort reform; that is not the case. Any reforms that lead to less litigation also lead to less defense work. Essentially, it is the lawyers who have the most to lose here, which is the reason the opposition to Proposition 12 is so well-funded and consists primarily of trial lawyers. In the end, Texans have to decide whether they want more and better doctors or more and better lawyers. Capping non-economic damages is a fair and balanced approach to our health care liability crisis, as demonstrated by the tremendous bipartisan support. The final conference report of HB 4 was adopted in the House with 110 of 150 votes and in the Senate with 27 of 31 votes. I encourage Texans to vote for Proposition 12 to ensure that the benefits of medical malpractice reform are felt sooner rather than later. |
