Tort reform made sense to lots of people at the time, Stephen DiLeo included—that is, until a doctor removed his son’s brain tumor.
That was the headline and subhead of a recent article in The Houstonia Magazine. And the answer is YES — it’s far past time to reform “tort reform” in Texas. This was a bad law at the time, and age has not made it any better. As intended, it has benefited insurance carriers and large corporations at the expense of ordinary Texans.
Please read this important article. Here are a few paragraphs from it:
“THE WAY OUR SYSTEM SHOULD BE WORKING, and the way it was designed by our founders to work, was this: on a case-by-case basis, judges and citizens would sit and hear evidence, and then weigh it based on the law,” says N. Alex Winslow, the executive director of Texas Watch, an Austin-based bipartisan consumer advocacy group. “And then they would make a decision whether someone was at fault or not, and if so, how much.”
Thus did malpractice cases work their way through Texas courts for the better part of 160 years, from statehood all the way up until the early 2000s, when supporters of tort reform began portraying the state as a “lawsuit mecca” and “judicial hellhole,” wherein “jackpot justice” reigned. Thanks to frivolous lawsuits and the lack of caps on punitive damages, so went the argument, high medical malpractice insurance premiums were forcing doctors to either leave the state or retire early. Hence, the shortage of physicians, particularly in rural areas. And among those who continued to practice, said supporters of tort reform, a fear of lawsuits was driving them to order multitudes of tests, many expensive and unnecessary, which meant higher healthcare costs for everyone.
Clearly it was time to rein in the lawyers, and in this cause the insurance companies joined forces with Texans for Lawsuit Reform, a lobbying group founded by four Houstonians: construction magnate Leo Linbeck Jr., homebuilder Richard Weekley, Richard Trabulsi, a corporate attorney (and now owner of the Richard’s liquor store chain), and Hugh Rice Kelly, Reliant Energy’s former general counsel. In 2003, in an astonishing series of victories, the TLR helped persuade the Texas Legislature to pass a bill capping non-economic damages for malpractice victims at $250,000, and $100,000 at certain public hospitals. Restrictions were also placed on contingency fees (in which lawyers are paid a percentage of what their client wins in court, if anything, rather than collect any money up front), and lawyers were prohibited from being reimbursed for expenses until their clients won—if they won. Tort reform advocates got almost everything they wanted from the legislature, and what they couldn’t get from lawmakers they got from the voters.
“Backers of tort reform knew that the state constitution—not to mention the federal constitution—was very clear that Texans have a right to…go to court and hold someone accountable by presenting evidence to a jury of your peers,” says Winslow. And so, that September, an amendment to the Texas Constitution known as Proposition 12 was put on the ballot. It was voted down in every major metropolitan area in the state, but the rural counties—convinced they would lose what few doctors they still had—voted in favor. By a razor-thin 1.2 percent margin, Prop 12 became law.
“Never have so many who needed so little gained so much,” said Craig Eiland, a former trial attorney turned Democratic state representative for Galveston, two years after Prop 12’s passage.
“When we look back, we know that they knew what they were doing was unconstitutional. That was why they had to amend the constitution in order to do it,” notes Alex Winslow with a bitter laugh.