Recently, defenders of Texas tort reform initiatives have been playing defense against trial lawyers who have pushed for legislation and the courts to diminish or repeal the current tort reform measures. In the wake of a U.S. court opinion, it appears the defenders of our tort reform initiatives will get to play offense soon.

On September 13, a U.S. magistrate judge found that the cap the Texas Legislature set on non-economic damages in health care liability suits is constitutional. Specifically, she found that the Medical Malpractice and Tort Reform Act of 2003 does not violate the plaintiffs’ constitutional right of access to the courts and the takings clause of the Fifth Amendment to the U.S. Constitution. What this means is that another attempt by trial lawyers to repeal a significant portion of the 2003 tort reform laws has been thwarted.

On the heels of the court’s decision, Governor Perry announced that “more is needed to restrain frivolous lawsuits and personal injury lawyers.” He laid out specific policy provisions for his new tort reform initiative, which include: loser pays for frivolous lawsuits; early dismissal for frivolous lawsuits; legislature determines new, more specific causes of action; and increased access to courts for legitimate claims.

Where the 82nd Texas Legislature takes these initiatives is still unclear, but for the first time in a while, trial lawyers will be the ones on defense-against proposed increases in tort reform measures-rather than just whittle away at the successful measures currently in place.

– Ryan Brannan