Tort “reform”: A historical perspective from the trenches

It’s November 5, 2002, and a majority of Texas voters have just been persuaded by misleading ads, paid for by an interested party, to vote to severely restrict the rights of injured patients for the benefit of the companies who insure hospitals, HMO’s and physicians who injure them through neglect, recklessness and even, sometimes, intent!  That was the focus of Proposition 12, which has now passed into law, and will become effective in September, 2003.  It has been the hallmark of the ever-touted “Tort Reform.”  Insurance executives are jubilant…

That has been our law, and a substantial hurdle to justice for Texans ever since.

“Reform,” by definition, means to change something.  Usually we want to change things that are not working.  As unpopular as this belief seems today, the American system of justice was working.  Juries throughout Texas and the country were entrusted with the right and responsibility to judge issues of fact and of the value of human suffering with evidence put before them in a court of law.

But some did not like that …

Who, do you suppose, would oppose such a system that enabled average American citizens to hold accountable those responsible for harms?

Because those with money and power were tired of being held accountable to the rest of us when they did something wrong, they successfully destroyed the rights of many Texans to bring suit.  They were well-funded, they made effective use of the media, and used terms “reform,” “frivolous lawsuits,” and “greedy trial lawyers” to sell their self-serving ideas to the Texans who so willingly voted away many of your own rights.

Every victim of a medical error or nursing home abuse that has come to my office since the effective date of the new law (HB-4), has been negatively affected by its harshness.  Many, I can no longer help at all.  Those with less than $100,000 in actual damages are usually turned away because I cannot afford, financially, to help them on a contingency fee basis.  Is this justice?

To our nursing home clients, we regret to inform you that the legislature has capped “non-economic damages” at $250,000.  What is even more egregious is that the jury is not even allowed to know that fact. Because your elderly loved one was likely not earning an income, they did not suffer any “economic damages” – as defined by our Republican legislature, that arbitrary cap (placed in California decades ago) is the maximum value of most of your loved one’s case.  It is not in the least bit uncommon for one of these suits to cost the attorney $100,000.00 or more by the time he or she walks into the courtroom.   Attorney fees in these cases are typically based upon a contingency (a percentage of the recovery if we win).  Does anyone else wish that college football coaches were paid this way?

As you can see, if we were to win the maximum dollar amount, the contingency fee combined with the reimbursed costs would leave very little for the aggrieved family.  The family is then dissatisfied because in that scenario your lawyers may well have been paid more than you received.  Does anyone think that the insurance industry (with all of their “bean counters”) that pushed for this “reform” did not know that the math would play out that way, preventing almost all of these suits from being brought?

What is even more surprising to most is that despite the media sound-bites to the contrary, most of these cases, nationwide, are historically not won by the claimants, but lost.  Therefore, as a business investment, MOST of these cases are now rejected by Texas attorneys who once championed them for injured elderly who are abused and neglected by their caregivers.

It is the minority of doctors and facilities who commit the atrocities that we sue for.  A 2002 report by the Public Citizen consumer watch group indicated that 51% of all medical malpractice claims in the U.S. are made against less than 5% of the physicians.  The problem is that the insurers do not only increase the rates for those 5% of physicians (which would force the bad doctors out of business), but they increase rates across the board, so that the good physicians have to pay the same rates as the bad ones.  It doesn’t work in auto insurance, why do they think it will in medical insurance?  Because they can blame “greedy trial lawyers” and “frivolous lawsuits” for their own greed, and because they have the money and the media network to get that message out loud enough and often enough that the general public believes it.  That 14-year old report has changed this practice in absolutely no appreciable way since its publication.  Why?

So what was the real Medical Malpractice Insurance Crisis?  Ask any honest insurance professional whether the lawsuits against negligent and reckless doctors caused the insurance rates to skyrocket, or whether it was, instead, simply bad investments by those companies in a volatile stock market that forced so many insurance companies into bankruptcy and mergers.  The truth is, that insurance companies made huge investments in the stock market which (like so many of our personal investments) turned sour.  Most reports about the impact of medical malpractice lawsuits – including one conducted by the GAO (Government Accounting Office) show that lawsuits account for less than 2% of the cost of insurance premiums to physicians.

Why then, do lawsuits have to be limited?  Why this infringement upon our 7th Amendment right to trial by jury?

The answer, really, is simple:  the insurance industry wants us to pay for their bad financial decisions, and forfeit our civil right to recover for injuries as a result.  The right to trial by jury, established by our founders, included the right to have a jury decide what your injuries are worth!

Remember, these so-called “runaway verdicts” against doctors were rendered by impartial juries who listened to ALL of the evidence in each individual case, and made their decision based upon legal FACT.  They did not simply get the media sound-bite that made for a good story:  They heard it all.

The hype that these lawsuits were “frivolous” is ludicrous when you consider that if they were, in fact, frivolous, the injured party would almost never win.  In fact, the truly frivolous cases have almost never made it to trial because of safeguards in place such as motions for summary judgment.  Before simply agreeing with the “lawsuit lottery” hype that the insurance industry sells to its favored lawmakers through lobbyists, look deep at each case.  The insurers don’t want to risk a trial with EVIDENCE.  They would rather win every case at once – in the media with money!

We sincerely hope that no injury ever requires you to need our services, but if you walk into our offices looking for assistance for some terrible injury done to you or a loved one by a doctor, hospital, nursing home, or HMO, please understand that the law – and public opinion – is against us.  When it comes to injured children, especially, that is the TRUE Medical Malpractice Crisis!

When you seek an attorney to represent you in a case of medical malpractice, you want someone who has a history of representing injured medical clients – even through these troubled times.  These cases are often a complex combination of law and medicine – not the type of case to “dabble” in.  At The Carlson Law Firm, we handle these cases and others through the quagmire of law that has been created to prevent injured people from seeking justice.  To the extent that you still have rights in Texas, we will help you to pursue them.


Written by:

Todd Kelly

Trial Lawyer


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