Dec 10, 2012
Looking out for the public interest is like mowing the grass: almost before you are done, it's time to start over. Texans who understand the benefits of tort reform know what I'm talking about.
The landmark tort reforms that Texas enacted in 2003 and 2005 have worked the way community leaders, business owners, and professionals - Democrats as well as Republicans - hoped they would.
Medical malpractice reform has led to more than 26,000 newly licensed physicians opening offices in Texas as they are now freed of anxiety over a runaway jury mopping up the courtroom with them on the urging of a lawyer concerned less with justice but rather more with fee size. The tort reform law limited the blue-sky, anything-goes jury awards for non-economic damages that were causing doctors to fold their practices and, in some cases, leave the state.
Similarly, the uncontrollable growth of asbestos and silicosis lawsuits has suddenly come under control. Congress is no longer talking about setting up a slush fund to pay off the attorneys, doctors, and screeners in this once-booming "industry."
Here's more good news: Recently, U. S. District Judge Rodney Gilstrap, of Marshall, brushed aside constitutional challenges to the medical malpractice reforms in a simple, one-sentence order. The law stands. A Texas hospital spokesman explained why that's a good thing- namely, because reduced liability under the law has permitted hospitals to plow savings back into "hospital operations, including new technology that saves lives and improves patient safety."
Ready now for some bad news? The sue-‘em mentality still lives on, even in Texas. A recently formed political action committee is working for enactment of a bill that would authorize private attorneys to sue the state on behalf of so-called "whistleblowers." That's in the event the Attorney General - our chief legal officer - finds a particular case unmeritorious and declines, on behalf of all Texans, to file suit.
Maybe it won't happen, but you see the point - where the promise of hefty jury awards and paydays appear, plaintiffs' attorneys may be counted on to drop everything and head to the courtroom.
This happened recently in Utah, whose Supreme Court ruled that a doctor can be held responsible for the behavior of a patient he's never even seen - the doctor in the case failed to flag a nurse-dispensed prescription blamed by plaintiffs for the mental state of a man who killed his wife. A plaintiffs' attorney gloated: "[P]rior to this, doctors didn't owe an obligation to people who were not their patients." Well, they sure do now.
Then there's Mississippi - long a gold-mine state for the plaintiffs bar - where a county circuit judge in April struck down a tort statute resembling the Texas tort law in limiting non-economic damages.
The message to Texans - be thankful for the Legislature's wisdom and foresight in remodeling the tort laws in such a way as to emphasize fairness for all parties, not just those waving accusatory fingers at other people.
The second part of that message - take nothing for granted. Even though the reforms of recent years are still reaping fresh benefits for all Texans, be ready for attempts to undermine their success in the upcoming 83rd Texas legislative session.
Joseph M. Nixon, the author of Texas' Prop 12, is of counsel with Beirne, Maynard & Parsons, LLP, and a senior fellow with the Texas Public Policy Foundation.