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Texas Messes with Plaintiff Lawyers

Clifford's Notes, Chicago Lawyer April 1, 2013

By Robert A. Clifford

I recently returned from an American Bar Association meeting in Texas where one of the Continuing Legal Education programs offered was titled, “The Juice Isn’t Worth the Squeeze: The Impact of Tort Reform on Plaintiffs’ Lawyers and Access to Civil Justice.”

A panel of nearly a half-dozen lawyers and judges from Texas headed by Stephen Daniels, research professor for the American Bar Foundation in Chicago, made it clear from the start: Tort “deform” has been a problem in Texas since 2003, when the legislature passed a resolution calling for a constitutional plebiscite to set $250,000 and $750,000 caps respectively on noneconomic damages against doctors and hospitals. A few months later, following a slick $29.6 million public relations campaign that claimed some 86 percent of Texans wanted tort “deform,” a constitutional amendment passed by less than 1 percent of the popular vote.

Now 100 percent of Texans pay the price. During the 2½-hour program, Daniels’ comprehensive study revealed some discouraging statistics for Texans who are injured or killed due to negligent conduct. In a survey of 460 respondent Texas plaintiffs’ lawyers, he asked whether they would have taken certain clients in a medical-malpractice case before the 2003 cap and whether they would after the cap.

The conclusion was clear — Texas lawyers simply aren’t accepting many malpractice cases and many people are left with no access to justice. A 70-year-old male injured by medical malpractice? Almost no one would take the case, Daniels said. Stay-at-home mom? Not likely. Even a 45-year-old left with facial disfigurement — likely not, if it involved medical malpractice. Texans are experiencing the same lack of access to the courthouse as Californians have since the passage of caps in 1975 with the Medical Injury Compensation Reform Act.

Attorneys in these states have found these cases are too costly to prosecute, oftentimes telling an injured plaintiff after the $250,000 cap is enforced, it simply isn’t worth the effort of the potential plaintiff to pursue an action against the negligent practitioner. Many lawyers said they have closed their personal-injury practices altogether and have moved into other areas such as divorce, foreclosures, real estate closings and criminal work. The discrimination against the injured was apparent after hearing the stories of people with terrible permanent injuries who are being told they had no case because the noneconomic portion of their damages would be capped or because it involved an infant or a nonworking mother with limited or no lost wages.

Daniels explained how legislators, juries and consumers have been the target of public relations campaigns run by insurance companies since the 1950s. He showed a series of print advertisements that ran in 1953 in major magazines like Readers’ Digest, Life and the Saturday Evening Post to subliminally change potential jurors’ attitudes.

“Me? I’m paying for excessive Jury Awards?” blared one headline with a young woman staring bewilderedly into the camera as she held a piece of paper that looked like a grocery list. In tiny print across the bottom, was the ad’s sponsor: St. Louis-based American-Associated Insurance Cos. By the 1980s, the ads had advanced to headlines entirely in capital letters saying, “THE LAWSUIT CRISIS IS BAD FOR BABIES.” This ad, sponsored by the Insurance Information Institute based in New York, talked about the so-called “lawsuit crisis” and how some expectant moms have to travel to new doctors because “one out of every nine obstetricians in America has stopped delivering babies,” without any mention of other important factors, such as doctors retiring. It left the reader with the impression that lawsuits were the only cause.

It is clear that today the American Tort Reform Association is an organization with an agenda trying to work to use unfounded fears to influence how people think about lawsuits. The Bureau of Justice Statistics repeatedly has found that the number of tort cases filed is dropping in both state and federal courts. The latest statistics from the National Center for State Courts show that tort cases accounted for 4.4 percent of all civil cases filed in 2008, while contract cases in 2009 accounted for 70 percent of the civil caseload. Tort filings declined by 25 percent between 1999 and 2008 while contract filings rose by 63 percent in that same time period.

The doors of justice in Texas are closed for many. The story may be soon repeated in Kansas where the Supreme Court there recently concluded that a $250,000 cap on noneconomic damages in all personal-injury cases is constitutional. In Miller v. Johnson, No. 99,818 (Kan. Oct. 5, 2012), a surgeon mistakenly removed a 28-year-old woman’s left ovary instead of her right ovary; her $760,000 jury verdict was reduced to $425,000. Plaintiffs’ lawyers are the champions of tort law. They help to shape the law with the cases they bring, settlement amounts and what they appeal.

The lawyer works on a contingency fee basis and fronts all of the costs so that the person has access to justice. The lawyers who choose the law as a profession always begin with an ideological commitment. You have to. It is about giving someone who has been wronged a chance to have his or her day in court.

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