For a look at HB 4 (78th Regular Session) ...

.. the legislation leading to tort reform in Texas: click here.

Two posts on tort reform,

An author from the Texas Public Policy Foundation gives it a thumbs up on its tenth anniversary.

- Click here for it.

Ten years of tort reform have provided greater access to health care and helped make Texas the nation’s leading job producer. Indeed, by recognizing the causal connection between economic prosperity and efficient, fair courts, the Texas legislature passed and Governor Rick Perry signed House Bill 4 (HB4)—powerful tort reform legislation that is the foundation of the Texas economic miracle. Yet, despite the awesome economic growth and increased access to health care triggered by HB4, members of the trial bar are still working to overturn this reform. While Texans should stand their ground and rebuff efforts to undo HB4’s successful tort reforms, all Americans should take notice of Texas’s remarkable transformation and look to enact similar reforms in their own states.

 A critic of Missouri's effort to do the same argues that tort reform violates the 7th Amendment.

- Click here for that.

The 7th Amendment to the United States Constitution provides for the right of citizens to have their disputes tried to a jury of their peers. Under the Missouri Constitution, “the right to trial by jury as heretofore enjoyed shall remain inviolate“.

Inviolate. That is not a word used very often in today’s language. “Inviolate” means “free from violation, injury, or outrage” and, alternatively, as “not infringed.”

And yet, our constitutional right to jury trial is under attack nearly constantly in legislatures across the country. Yesterday, Governor Jay Nixon vetoed two attempts to violate, injure, and infringe upon Missourian’s right to jury trial.

SB 847 would give a negligent defendant a discount on paying damages based on insurance or benefits purchased or obtained by the injured victim. This bill would have taken the insurance paid for by the victimand given those benefits to the defendant.
Ridiculous.

From the Lubbock Avalanche-Journal: Tort Reform is Killing Trial by Jury

- Click here for the article.

Jury trials are disappearing in the State of Texas.

So-called "tort reform" is killing the people's right to a trial of their peers. Caps on penalties, increasing court costs, and skyrocketing usage of binding mandatory arbitration are taking cases out of the hands of juries and into the hands of judges and arbitrators.

Practically speaking, this means that tons of cases are never making it to a courtroom in the first place. In the last 15 years, Texas has seen a two-thirds drop in the number of jury trials along with a 30% rise in motions for summary judgment, all while the number of lawsuits has gone up by %25. This increases the power of judges and of defendants who have lots of resources (usually that means big bidniss, mmmkay). The little guy is getting shooed out the courthouse door rather than getting his or her day in court.

I believe this has a sinister, less-considered side effect too: ordinary people will forget (or never even know) what jury duty is like. Individuals may breathe a sigh of relief when they don't get picked for jury duty or when a jury trial is called off at the last minute in favor of arbitration, but collectively this hurts our democracy. Jurisprudence belongs to the people and reminds us that ordinary people are the backbone of the country. It's yet another civic duty that we are all too willing to throw away (and that powerful interests are all too happy to help us throw away in the name of efficiency).

Again, I really do doubt that people will be outraged by this, although they should be. The state of American education when it comes to the law and to civics is dismal.
There is no cheerful quip at the end of this blog. Our legal system is in serious trouble and we don't even realize it.

Tort Reform in Texas

For class discussion:

In 2003 Texans approved - 51% to 49% - an amendment limiting damages in medical lawsuits for pain and suffering in mapractice cases to $250,000.

- Click here for info about it from Ballotpedia.

The policy change has been evaluated over the past few years. Here's a taste.

- 10 Years of Tort Reform in Texas Bring Fewer Suits, Lower Payouts.
- Abbott views tort reforms as good for Texas business.
- Texas Justices To Decide If Tort Reform Law Covers Autopsies.
- Ted Cruz: The Ultimate Tort Reform Hypocrite.

From the Houston Chronicle: How a wayward cow could change Texas' tort reform law

Laws can be interpreted creatively if it benefits the client.

- Click here fore the article.

On its face, it is a straightforward case. A west Texas farmer's cattle got out of their pasture, roamed onto a rural road and caused a car crash. A man injured in the crash sued the farmer for negligence.

Thanks to some outlandish logic and an attempt to limit the farmer's liability, attorney Philip Russ has turned the case into somewhat of a referendum on the limits of the 2003 tort reform law, which heavily regulated medical malpractice lawsuits and capped damages for pain and suffering.

Russ is seeking to get the negligence suit against his client dismissed, arguing that since the farmer is a retired doctor and the cows were under his care, it should have been filed as a medical malpractice suit. Because it was not, he argues, his client should not be liable for the injured man's hospital bills.

Besides acting in the best interests of his client, Russ, an Amarillo attorney who more often represents plaintiffs, is hoping his ploy also will illustrate something he says is even more ridiculous: the legal system's current interpretation of the state's landmark tort reform law.

Increasingly, he argues, defense attorneys are resorting to twisted logic to have cases classified as medical malpractice suits as a way of limiting the amount of damages for which their clients would be liable.

From the Texas Tribune: Court to Decide if Autopsy Counts as Health Care

Here's a story that merges our upcoming look at the Texas Judiciary - including the consequence of an elected judiciary - with our past look at Article 3 of the Texas Constitution. It also continues our ongoing look at cases that involved interpretations of the Texas Constitution - which is apparently not as clearly written as we might suppose.

The question posed is the extent of the protections that doctors and hospitals have as a result of the passage of tort reform - which was added to the Texas Constitution in 2003.

- Click here for the story.

Eleven years after a man's unexplained death in a Katy hospital sparked a lawsuit involving allegations of malpractice, deception and theft of a human heart, the bizarre case has made its way to the Texas Supreme Court, which will answer a simple yet macabre legal question: Does an autopsy fall under the definition of health care?

If the high court says yes, critics say it would be the latest decision by conservative justices broadening a landmark state law that makes it tougher to sue doctors and hospitals for alleged wrongdoing. Supporters of the legal challenge — brought on an appeal by Christus Health, then owner of the Christus St. Catherine Hospital in Katy — say Texas voters approved sweeping tort reforms in 2003 to limit lawsuits against health care providers, and that autopsies on dead patients are a valid part of the medical care hospitals provide.

The case traces back to the morning of Jan. 22, 2004, when Linda Carswell's husband, Jerry, admitted with kidney stones, was found dead in his hospital bed. Carswell wondered if his death was due to a narcotic the hospital had administered. Carswell has said she asked for an independent autopsy, but her husband's autopsy was performed by a separate hospital under the same ownership as Christus St. Catherine Hospital — a fact she said she did not know at the time. That autopsy, which was inconclusive, did not include a toxicology test, which Carswell said could have shed light on whether the narcotic had killed her husband.

Further complicating matters, the examiner who performed the autopsy also allegedly removed the dead man’s heart without Carswell’s consent. The hospital fought not to release the organ, saying it could be important evidence that would show Carswell's husband died of a heart attack.

After an appeals court ordered the hospital to release the heart to Carswell, a separate forensic biologist said it contained no human DNA — either because of the way it was preserved, or because there was a “real possibility that the heart submitted was not human,” according to court documents.

A jury sided with Carswell, who says she was misled by Christus Health about the autopsy’s independence and scope, and awarded her a rare $2 million fraud judgment against the health care provider. Christus Health appealed the case and is still fighting it, although it sold Christus St. Catherine Hospital to Houston Methodist in 2014.

A spokeswoman for Christus Health declined to comment for this article. But in court briefings, lawyers representing Christus Health asked the Texas Supreme Court to weigh in on whether Carswell's case should have fallen under the Texas Medical Liability Act. That law, the health care provider argues, defines the nebulous term “health care” broadly enough to include autopsies — which would render Carswell's suit moot because she did not meet the legal requirements to sue.

For background:

- Section 66 of Article 3 of the Texas Constitution.
- Analysis of Amendment No. 12 - the Tort Reform Amendment.
- The Texas Medical Liability Act.
- Wikipedia: Medical Malpractice in the United States.
- Wikipedia: Tort Reform.
 

Co-Founder of Texans for Lawsuit Reform dies

The Houston Chronicle details the life of Leo Linbeck Jr. a recently deceased construction company executive who founded one of the more consequential interests groups in Texas: Texans for Lawsuits Reform.

He co-founded Texans for Lawsuit Reform to overhaul the state's tort laws and Americans for Fair Taxation to lobby for reform to the federal tax structure.


"Leo was a gentleman and a scholar whose knowledge, wisdom and vision have been gifts to his family and friends," said Dick Trabulsi, president of Texans for Lawsuit Reform. "His contribution to his community and to public policy cannot be calculated, nor expressed adequately."

He also had a hand in creating Americans for Fair Taxation.

In 1995, Linbeck joined forces with Robert McNair, owner of the Houston Texans, and investor Jack Trotter to create a grassroots group that advocates replacing federal income tax with a national consumption tax, repealing the 16th Amendment and eliminating the Internal Revenue Service.

From the AAS: New study: Tort reform has not reduced health care costs in Texas

This applies to a few sections in class, primarily in our discussion of public policy. It fits in our broader look at health policy as well as policy evaluation.

The story:

A new study found no evidence that health care costs in Texas dipped after a 2003 constitutional amendment limited payouts in medical malpractice lawsuits, despite claims made to voters by some backers of tort reform.

The researchers, who include University of Texas law professor Charles Silver, examined Medicare spending in Texas counties and saw no reduction in doctors' fees for seniors and disabled patients between 2002 and 2009. A 2003 voter campaign in Texas, and some congressional backers of Texas-style tort reform in every state, however, argued that capping damage awards would not only curb malpractice lawsuits and insurance costs for doctors, it would lower costs for patients while boosting their access to physicians.
But this goes beyond public policy, because its argued that tort reform was proposed as a way to minimize the financial power of trial lawyers, and their incentives to provide campaign contributions to Democrats. Was it a way to help Republicans dominate state elections? Some argue that Republican attacks on labor unions - which tend to skew Democrat as well - have the same intentions.

There are also claims that tort reform - by reducing damage awards - has made it more difficult for claimants to take cases to court. That adds an additional dimension to the story.

Since tort reform, some Texas residents have complained that they cannot find a lawyer to pursue a malpractice case because of the $750,000 cap on payouts for pain, suffering, disfigurement and mental anguish. The limit often makes litigation cost prohibitive, patients and lawyers said. That concern was not raised in the paper, although the researchers said claims of huge malpractice payouts and rampant "frivolous" lawsuits before tort reform are greatly exaggerated by its advocates.

From the NYT: Broad Ripples From a PAC on Tort Reform

Some background on one of Texas' strongest interest groups: Texans for Lawsuit Reform.

- The group's website.
- The groups' PAC.
- Topics: Texans for Lawsuit Reform.

More Tort Reform on the Way: Loser Pays

In 2302, once we wrap up the executive branch we head into the judiciary. One of the more consistently controversial topics over the past several years has been tort reform, which can be defined as one many efforts to change the manner in which accusations of damage (torts) are addressed in the civil courts.

A few years back, caps were placed on the amount of damages which could be awarded by a jury in medical malpractice cases.Currently, the tort reform is focusing on "loser pays," the idea that losers in civil cases should pay the court costs of the winners. Advocates argue -- again -- that this would discourage frivolous suits from being filed. Opponents argue that this would scare off most any lawsuits, even those that are worthwhile, since there is never a guarantee that one is likely to prevail in a court case.

Houston attorney Paul Simon thinks this is an effort to further strip away legal rights.

links:
- American Tort Reform Association.
- Texans for Lawsuit Reform.
- Perryman Group analysis of malpractice reform.
- Tort Reform Unlikely to Cut Health Care Costs.
- "Loser Pays" a Winner in the Texas Legislature?

- Point of Law: Loser Pays.

Tort Reform and Judicial Activism in Texas

Tort reform is once again in the news in Texas thanks to Entergy v. Summers, a case where a Texas appellate court ruled that a worker injured in an accident in an electric generating plant, cannot sue that plant because he worked for a general contractor doing work on the site, not directly for the corporation which owned the plant.

If understand the ruling correctly, a majority on the Texas Supreme Court ruled that the plant was acting as its own contractor, so could not be sued for negligence by the injured employee. Some members of the legislature who were involved in drafting the law governing this decision argue that the court went beyond its jurisdiction in making its decision. From the Austin Chronicle:

Sen. Kirk Watson of Austin echoed that, saying, "The Court reached a result that the Legislature has rejected over and over again. The Legislature has avoided reducing and has, instead, worked to assure worker protections and also make sure employers keep a commitment to safety."

"Non-substantive re-codifications of statutes are a constitutionally mandated duty of the Legislature ... specifically meant to NOT change the intent of law," said Brownsville Sen. Eddie Lucio in a statement. "In the Entergy decision, the Texas Supreme Court has violated the separation of powers in this state using judicial activism to write law."

Since we're heading into a discussion of interest groups in 2301, tort reform is a perfect example of an issue which divides business and labor. On one side of the issue is the business backed Texans for Lawsuit Reform, and on the other the AFL-CIO. In 2302, we've touched on the problems posed by an elected judiciary. Critics argue that since all the current members of the Texas Supreme Court are Republicans supported by the business community, their judgements will be biased against the interests of labor. Supporters generally point out that the Texas Supreme Court was equally biased against business interests and in favor of lawsuit plaintiffs when they were all Democrats elected with the support of trial lawyers.

So to tie 2301 and 2302 together, does interest group involvement in judicial elections undermine judicial independence?