Prop 12 backers stretch truth, too

Dallas Morning News ^ | 9/8/2003 | Editorials

[BeerSwillr]

12:01 AM CDT on Monday, September 8, 2003

Listen to the commercials in support of Proposition 12, and you'll get the idea that if Texans vote no on Sept. 13, your family doctor, neurosurgeon and anyone with a medical degree will fade into history.

Not so. The commercials, which feature Gov. Rick Perry's plea for passage, distort the implications of Prop 12. As a result, they risk misleading voters into supporting something they're sure to later regret.

The untold fact in these ads is that the Legislature already has capped non-economic damages in medical malpractice cases. This spring, the Legislature passed, this newspaper supported, and Gov. Perry signed into law a bill capping non-economic damages in medical malpractice cases at $750,000 per plaintiff. The law went into effect last Monday, along with scores of other bills enacted by the 78th Legislature. It was aimed specifically at halting the exodus of doctors from communities where they're needed.

The commercials backing Prop 12 don't tell you that, nor do those commercials mention that Proposition 12 reaches way beyond medical malpractice cases.

Backers argue that the constitutional amendment is needed to pre-empt lawsuits challenging the constitutionality of the Legislature's medical malpractice caps in order to abate a serious doctor shortage. We also lament an acute doctor shortage in South Texas and among certain high-risk specialties all across the state. This shortage is a reason we supported medical malpractice caps during the legislative session. But this amendment doesn't seek to just authorize caps on medical cases. It also would allow the Legislature to cap non-economic damages for virtually any civil action without the threat of a court declaring the action unconstitutional.

Think about that. Virtually any civil action.

The Texas Legislature is a political body that depends on campaign contributions, and it is persistently lobbied by special interests seeking special concessions. Texans should worry that Prop 12 lays the groundwork for future Legislatures to enact potentially onerous caps without fear of a judicial rebuke. That's the sort of thing that might allow a polluter or a maker of a defective product to elude the financial reprimand it deserves.

There may come a time when a future Legislature will need to enact caps in certain other kinds of civil actions as it did to address the current medical malpractice crisis. But the threshold for enacting caps must be set high, necessitated by a public emergency and decided on a case-by-case basis. Most of all, the Legislature's actions must remain subject to court review.

Vote "no" on Prop 12.

[sinkspur]

Think about that. Virtually any civil action.

Yeah. Just think about it. It's a very beautiful thing.

[MonroeDNA]

Sounds good to me!

Loser pays is the holy grail, though.

[BeerSwillr]

I agree with the loser pays statement. That would really put a stop to lawsuit abuse.

[DallasMike]

If the Dallas Morning News is against it, I'm for it.

[RedWhiteBlue]

Think about that. Virtually any civil action.

Yeah, I'm thinking about it. I'm thinking about the lady who was awarded a ridiculous sum when she spilled hot coffee from McDonald's on her crotch.

[hocndoc]

We had a local commercial about a boot maker who was sued because someone slipped on a wet floor wearing his boots. The cobbler won, but it cost $40000 to fight.


Today, I talked to a friend whose grandmother-in-law fell in a nursing home, dying due to infection in a broken bone afterward. The family of nine children won $7.5 million. After the lawyer was through, each got $90,000. What happened to the other $6 million plus?
Tort reform is good for us all.

Here's the editorial I wrote, published in our local Herald Zeitung:

Vote Yes on Proposition 12

The voting citizens of Texas will soon decide on 22 amendments to the State Constitution. Proposition 12, which clarifies the ability of the State Legislature to set penalties under tort law, would not change the current system for trying medical malpractice or other civil lawsuits by jury. It will protect HB 4, the Omnibus Tort Reform Bill which was passed by the 78th Legislature this year, in an effort to stop runaway lawsuit abuse. Because of the way that Texas law is written, however, the Tort Reform Bill itself is in danger of being overturned by judges in the courts as unconstitutional unless Proposition 12 is passed.

This Bill included limits on non-economic damages to a maximum of $750,000 per case and reset the cap on wrongful death payments to adjust for inflation (currently set at about $1.4 million). Calculations and payments for real losses such as medical costs and lost wages will not be changed nor restricted. The right of the defendant to a jury trial is not affected at all.

All criminal penalties are limited by laws that are passed by the Legislature and passed as an amendment to the State Constitution. It is the law which determines which killings are capital crimes and which are not. The law sets minimum and maximum sentences for other felonies and misdemeanors, although juries determine guilt and work within those limits during the punishment phase of trials. Texas tort law already limited civil penalties assessed for wrongful death. In other tort cases such as medical malpractice and other civil lawsuits there are economic, punitive and non-economic penalties. The economic penalties include medical costs (including future costs and actual care), lost wages, and actual damage to property. There are no “caps” on actual economic damages. Punitive damages are meant to punish someone at fault and help prevent similar future acts. Non-economic damages are to pay for pain and suffering, loss of companionship, and mental anguish. While the penalties for medical cost and lost wages can and will continue to run into the millions, it’s usually the non-economic damages that result in the overwhelmingly high awards that are often called “lawsuit lottery.” These fees make up 65% of the totals of awards made by juries.

Doctors learn the cliché “anyone can be sued for anything” as fact in medical school, and the legal climate in Texas gives us plenty of Continuing Medical Education on that fact. Half of all doctors in Texas have been sued, although I don’t think anyone believes that half of all doctors practice bad medicine. Even though in 87% of those lawsuits no money is paid to the person who sues, doctors still have to go through all sorts of legal hassles and stress in dealing with the matter and the malpractice insurance companies must pay to defend every lawsuit. So our malpractice rates are going through the roof. I’ve never been sued, but my malpractice insurance has gone up 25% to 30% every year. For many doctors, the increase is even higher. The constant threat of being sued and the rising cost of malpractice insurance were factors in deciding to close my office this year.

Neurosurgeons and those who deliver babies have been hit hardest of all and it’s affecting the availability of medical care. In Dallas, the neurosurgeon who used to do trauma care at Methodist Hospital moved to North Carolina when his malpractice went up, increasing the stress on Parkland and Baylor ERs. 40% of Texas counties don’t have doctors who deliver babies or provide prenatal care.

Doctors and hospitals are limited by Medicare and the marketplace by how much they can charge their patients, but within those limits, they must raise their fees in order to make up their costs. Each increase in malpractice raises the cost of doing business. This makes it more expensive for other businesses and the State buy health insurance and for the uninsured to afford healthcare. Businesses and States don't pay the costs on their own - logically the costs are passed on to taxpayers and customers, as well as employees who theoretically could have taken home more in salaries.

Medical liability premiums will not go down immediately when the caps go into effect –we have to expect a lag as the old cases are cleared. And those economic damages will increase as medical costs continue to increase due to increased technology, the cost of medications, and inflation. But, there is evidence that the increases will slow. The burden on our courts and stress on doctors who are practicing good medicine will definitely decrease if there are fewer lawsuits because the lawyers contingency fees will be limited because patients will only receive actual damages and costs instead of extravagant jackpots.

Beverly B. Nuckols, MD
New Braunfels

[solo gringo]

I will vote YES on 12.The lawyers has driven the cost of insurance so high some of the good doctors that charge a desent fee has gone out of business.They can not afford the cost of the insurance to stay in health care includeing my daughter.The least infraction and the lawyers sue for millions.They may not win BUT it cost the doctors or healthcare givers so much to defend themselfs and the cost is passed along to the people they care for.It is time for the abuse to end.

[solo gringo]

I will vote YES on 12.The lawyers has driven the cost of insurance so high some of the good doctors that charge a desent fee has gone out of business.They can not afford the cost of the insurance to stay in health care includeing my daughter.The least infraction and the lawyers sue for millions.They may not win BUT it cost the doctors or healthcare givers so much to defend themselfs and the cost is passed along to the people they care for.It is time for the abuse to end.

[solo gringo]

Sorry for the double post

[The Old Hoosier]

You can always come up with a counterexample, but if one guy doesn't become a billionaire for losing his penis, and it means doctors will keep practicing and being available in Texas, then it's probably worth it for the common good.

[Dog Gone]

Speaking as a conservative Texas attorney, I support this proposition and I voted for it today in early voting.

I have some reservations about it, though. It's not the way I would have written the amendment.

[rustbucket]

...you are taking power away from an institution of the people--the jury

Another institution of the people, the legislature, sets the penalties for all sorts of crimes. Why not this? A cap on these sorts of damage awards seems quite in order to protect our medical system.

[hocndoc]

The man had cancer that was being treated by surgery. I'm not sure whether the amputation was accidental or not. I know of men who have had such amputations because of the type of cancer they had. (and lots of women who were castrated - they have had hysterectomies.) He will be eligible to up to $750,000, not $250,000 in pain and suffering charges. Plus all medical costs, including therapy and reconstruction, if he's eliglible, and even punishment fines (triple the economic or medical costs).

What good will millions of dollars do this man?

Either the doctors were trying to prevent spread of cancer or they made a mistake. Even if they purposefully cut off a healthy penis because they were stupid or mean, what good will a huge award, paid for by the insurance company do? They need to be punished by the State Board of Medical Examiners, not by a huge monitary judgement.

The only "good" will be a large fee to the lawyers.

[hocndoc]

I would be grateful, as I'm a female.

I would want the doctors to explain.

But, bladder cancer can and does invade the urethra and prostate. Amputation of the penis could have saved his life.

What good will an award of more than $750,000 do for this man? Especially when the lawyers take most of it?

If the doctors committed malpractice, they should be punished accordingly. I don't know how an insurance company paying millions will punish them.

[Ron H.]

The only "good" will be a large fee to the lawyers.

Good Dittos...........

[lewislynn]

Speaking as a conservative Texas attorney, I support this proposition and I voted for it today in early voting.

Texas' Prop 12 regulating lawsuits with (price) caps sorta blows the whole "conservative" "deregulation" and "free market" mantra, don't you think?...But then you Texans never did understand what "deregulation" means.