by Mimi Swartz
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Once upon a time, the purpose of tort law was to make injured people whole. In Texas, victims of medical malpractice or corporate wrongdoing, no matter how poor or powerless, had some redress through the legal system. The Texas constitution plainly states that “all courts shall be open” and that every injured person “shall have remedy by due course of law.” But through the efforts of a small group of wealthy and politically influential businessmen and a legislature slavishly devoted to the organization they founded, Texans for Lawsuit Reform (TLR), those days are gone, and these rights may disappear across the nation as President Bush pushes his campaign against “greedy trial lawyers” and “frivolous lawsuits.”
Here is what can happen to you in Texas today, thanks to tort reformers and the Legislature: If you go to an emergency room with a heart attack and the ER doctor misreads your EKG, you must prove, in order to prevail in a lawsuit, that he was both “wantonly and willfully negligent.” If you took a drug that was later recalled after studies proved it could cause fatal complications, the manufacturer can escape liability for your serious injury or death if the instructions inside the package were approved by the FDA when you took the medicine. If your child is blinded at birth because of medical malpractice, there is a good chance that her only remedy is to receive a few hundred dollars a month for the rest of her life. If a driver hits your old Ford Pinto from behind and burns you beyond recognition, Ford will almost certainly be able to shift the blame from its defective product to the driver of the other car. If you live in an apartment complex that lays off security guards and fails to maintain its locks and you are raped as a result, the apartment owner can still avoid liability. All of the above presumes that you can find a lawyer to take your case; many can no longer afford to do so because tort reform has reduced your odds of winning. And should you by some slim chance win and the defendant appeals, your odds of ultimately prevailing on appeal are 12 percent as of 2004—the paltry rate at which the Texas Supreme Court, which has also been subject to the influence of the tort reformers, has found for the plaintiff in cases involving harm to persons or property, according to Court Watch, an Austin-based public-interests organization.
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A 1994 Bureau of Labor Statistics report, for example, failed to uncover any decline in the Texas economy that could be attributed to frivolous lawsuits; Texas, in fact, led the nation in the number of new jobs created that year, when TLR was first becoming a force in Texas politics. That same year, Fortune magazine reported that, in the last quarter-century, Texas had enjoyed a 311 percent increase in Fortune 500 companies headquartered here. A national jury verdict survey found that the midpoint verdict for personal-injury cases in Texas was below the national average in every year from 1989 to 1993, including 45 percent below average in the last year of that period. In other words: What litigation crisis? ... Says Democratic state representative Craig Eiland, of Galveston, himself a trial lawyer: “Never have so many who needed so little gained so much.” ... Republicans voted as a bloc—the occasional stragglers were quickly whipped back into line by Craddick—and so, most of the time, did Democrats. Their pleas for exceptions to the cap fell on deaf ears. What if, for instance, an injury was proved to be intentional to a child or an elderly or disabled person—someone without significant economic damages? The answer was no exceptions; the cap would remain at $250,000. What about nursing home patients who were injured? Nope. What if the doctor was proven to be drunk? Still no. What about allowing the cap to rise with the consumer price index? After all, the $250,000 cap, which was chosen because a similar figure had been adopted in California in 1975, would be worth a little over $750,000 in 2003 dollars. No, no, no. Meanwhile, the TLR principals remained a constant presence in a corner of the House gallery, which inspired a Democratic state rep to christen their spot “The Owners’ Box.”
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http://www.texasmonthly.com/csc/feature4.php?click_code=20d52f0e2872816e3055887e6ef11497>
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