If
we desire respect for the law, we
must first
make the law respectable. --Louis D.
Brandeis
Most
of us have lost respect for the law as we
stare in disbelief at the ever-more-common
news story about the latest ridiculous lawsuit.
Yet, on the other end of the spectrum when
legislators seek to fix such abuses, most
are equally bewildered at the legal mumbo-jumbo
at issue.
While
lawyers debate the merits of the recent
state tort reform efforts, many Texans might
still be wondering: “What did they actually
do and how does this really affect me ?”
Fundamentally,
the recent reforms should restore most Texans'
respect for the law by enacting
some very common sense changes. While many
of the changes affect seemingly mundane,
technical aspects of the law, they will
have far reaching consequences for all Texans
including lower prices for various products
and services, more jobs in Texas , and preserving
access to healthcare. Many of those who
worked so hard on this issue were driven
above all by a sense of basic fairness and
what is right. Above all others, this includes
Joe Nixon, who sacrificed much personally
and professionally. All Texans owe Joe a
debt of gratitude beyond measure. As a lawyer
himself, he had to pick a fight with many
in his own profession, which many are realizing
is a profession that has become too large
a segment of our society. Joe was steadfast
in the reforms he felt were fair and was
equally as steadfast against those he felt
were not. The result is a reformed system
of justice that all Texans can respect.
For
those still wondering what was in this “tort
reform” legislation, here are a few highlights
and examples of the prior unfairness in
the legal system:
CLASS
ACTION ABUSES CURTAILED:
Texans
might be surprised that all those class
action lawsuits practically never go to
trial. With hundreds to hundreds of thousands
of plaintiffs and multi-million dollar stakes,
no company can afford the risk. So, if the
trial court “certifies the class” to allow
it to go forward, there is almost always
a settlement because no appeal was allowed
until after a full-blown trial. The new
law allows an appeal—all the way to the
Texas Supreme Court if necessary. This will
allow higher-court review of this vague
area of the law; something lacking until
now. Further, often the lawyers walk away
with millions in fees while the consumer
‘victims' receive coupons worth a few dollars.
The new law limits lawyers' fees to more
reasonable amounts. These reforms should
help ensure that this legal extortion will
be dramatically curtailed in Texas courts.
JURIES
ARE ALLOWED TO HEAR MORE SO ALLOCATION OF
FAULT IS MORE FAIR:
In
Texas , defendants could be forced to pay
way more than their share of the blame,
even if they were only slightly at fault.
Defendants who were fugitive criminals,
bankrupt, or otherwise beyond reach of the
court could not be submitted to the jury
in allocating fault. So, if a criminal was
99.0% responsible, but never apprehended,
the apartment owner could be held fully
liable—even if the owner was arguably only
1% ‘responsible' by perhaps lacking appropriate
security measures. There is a basic principle
of fairness lacking in that example. The
new law allows all responsible parties to
at least be submitted to the jury.
As
another example, in car accidents, juries
were not allowed to know that a person was
not wearing a seat belt.
BALANCING
COSTS OF LITIGATION & ENCOURAGING SETTLEMENTS:
The
concept of “nuisance lawsuits” illustrates
the problem: often, even a lawsuit without
merit is settled for some amount less than
the costs to defend because it is quite
simply cheaper. Further, well-funded plaintiff
attorneys had the upper hand in holding
out for larger settlements by the mere threat
of prolonging a case, even if the lawsuit
had little merit. There was little downside
to rejecting reasonable settlement offers.
In one of the most fundamental changes,
the new law puts plaintiffs on the hook
for the other side's additional litigation
expenses if a reasonable settlement offer
was rejected. Now both sides have to take
into consideration overall costs of litigation
and the true likelihood of success at trial.
PRESERVING
ACCESS TO HEALTHCARE; CAPS ON PAIN &
SUFFERING DAMAGES:
The
new law establishes a $250,000 limit on
mental anguish, pain and suffering type
damages in medical malpractice cases. Some
key statistics drive home the need for this
reform:
•
The percentage of awards attributable to
non economic damages rose from 35.7% in
1989 to 65.6% in 1999.
•
The number of medical liability companies
in Texas dropped from 17 to 4 just since
2000. 40% of the doctors in the state are
covered by a non-profit trust.
•
Over 150 counties in Texas have no obstetrician.
Many counties also have no neurosurgeon
and no orthopedic surgeon. People are literally
dying because there aren't enough emergency
personnel to provide care in the critical
hours after an accident.
Medical
liability has some truly unique aspects,
not the least of which is the cost of healthcare
to consumers. Patients who are legitimately
harmed should be compensated, but placing
a limit on the subjective portion of jury
awards makes sense and removes much of the
lawsuit lottery appeal of malpractice cases.
Doctors are increasingly seeing their incomes
reduced and are spending more and more time
in court. As doctors increasingly find the
practice of medicine less desirable, patients
are being left without access to doctors—especially
in particularly risky specialties like obstetricians
and neurosurgeons.
Other
reforms strengthen expert requirements,
increase the standard of proof in emergency
room cases, and protect medical providers
from lawsuits when they provide charitable
care.
PROPOSITION
12:
This
constitutional amendment, approved by Texans
in September, gives clear authority to the
legislature to place limits on non-economic
damages. It affirms that the legislature
is the policy-making body of this state
and that it can curtail years of expansion
in categories of damages and definitions
of liability by Texas courts.
Numerous
other reforms were contained in the recent
comprehensive reform bill; far too many
to mention here. One can only hope that
these reforms help return some respect to
both the law and the legal profession in
Texas .
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