Great analysis of the anti-populist law "reforms" in Texas -- must read

[Czolgosz]

Whenever Bush's back has been pushed against a wall, he tries to change the subject to anti-populist legal "reform." This is what has happened in Texas, and it's what Bush will use to try to steer the national debate away from his failures and corruption at home and abroad. Please read this and don't let Bush do to the whole nation what he has done to Texas:



by Mimi Swartz

...

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.

...

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.”

Link: <http://www.texasmonthly.com/csc/feature4.php?click_code=20d52f0e2872816e3055887e6ef11497>

[bleedingheart]

1. This article spells out the danger of voting for something you do not

understand.

Sadly until a lot of people end up screwed...nothing will be done.

[Czolgosz]

7. I worry Texas voters will make that mistake on some of the initiatives

on the November 8 to ballot to amend the state constitution. Some of the provisions are being very cleverly cast as "giving Texans the same rights as people in other states" when in truth the provision is eliminating some of the homestead protections that Texans enjoy which many other states don't provide (Texas used to be the state with the most pro-consumer lending laws but those laws have been shifting more and more away from that model due to intense banking industry lobbying and PR work).

It makes me sad to hear so many open minded, well educated, liberal people who think "why would I want any of those inhibitions against encumbering my home?" when, historically, those encumbrances have been hard won consumer protections which have served the poor very well over the years. I am resigned to the idea that this anti-consumer/pro-lending industry constitutional amendment will pass based on the votes of good hearted people who think they are gaining a new freedom instead of surrendering a long-standing protection.

[bleedingheart]

2. by the way...Mother Jones did an excellent piece on how

Texas home buyers got screwed with the "tort" legislation.

[Czolgosz]

3. I'll have to look that up; I hadn't heard about it. Thanks.

[Czolgosz]

5. deleted (posted reply in wrong place)

.

[bluedawg12]

4. The malpractice crisis drummed up for '04 is an example

of how the American people fail to delve into a complicated issue and willingly accept the entire package of Madison Avenue style marketing , with out question, a behavior repugs count on so dearly.

While medical care, access to medical care, affordability of medical care, and honest reporting following the post marketing complications of drugs, are problems so are there problems for health care professionals.

Rising over head, cut's in payment by third party payers, delay in payment for services up to two and six months, when payment arrives it is deeply discounted sometimes to 60 cents on the dollar billed, mountains of paper work, and aggressive trial lawyers who are willing to turn expected compilations in high risk patients into negligence suits.

No one is happy with medicine as it is today, except hospitals, insurance companies and pharmaceutical makers.

So, while almost everything I have listed can be debated from both sides of the issue shrub cleverly used malpractice suits and dragged out smiling doctors in their white coats to stand behind him on the podium ( just like he drags out soldiers, cops and firemen as props) to make his case against trial lawyers and malpractice.

But, the issue is far too complicated for a shrub style simple answer with-out a discussion. You know the story: we're going to war with Iwrack because I said so. Vote for harry-ette because I said so.

Daddy telling the obedient children what is best.

As far as malpractice goes there are two valid sides to this argument.

Doctors are often seen as a lottery ticket for simply a bad outcome not related to physician error but related to other factors such as non-compliance, under lying co-morbid conditions, acts of God.
Law suits damage good doctors spiritually and professionally. Most, if not all, go into medicine to help other people and being accused of negligence and causing terrible permanent damage to another human being is depressing and stressful, if it is not true.

On the other hand, there are acts of bad medical care and deviation from accepted standards. There are also examples of stretching the standards to run up huge bills, especially in self referral centers such as some Pain Clinics. Fee for service, and facility!

The issue centers on three things:

1.) Monitoring for high quality medical care and getting bad actors to either obtain further training, or get out of medicine.

2.) Allowing patients who are harmed by negligent acts or omissions to have recourse to fair compensation.

3.) A fair system of impartial case review to screen for merit.
This does not preclude the right to trial but most lawyers would opt not to litigate if a panel of doctors and lawyers found no merit in their case.

.............

However, I never heard such debate nationally, I just saw sloganeering and photo-ops with a sweaty delighted shrub stumping in his blue shirt sleeves rolled up while physicians behind him were bleating and baaing and writing out their checks to the RNC.

[Czolgosz]

6. I agree with everything you say except your advocation of "a fair system

of impartial case review to screen for merit." We already have "a fair system of impartial case review to screen for merit." It's the courts of law. Adding some extra layer will just add delay and more cost for all parties because there are many financial and procedural disincentives against filing groundless medical malpractice lawsuits (a law practice based on filing bad suits is every bit as much of a sound business model as a company that makes an expensive product that no one will buy).

For example, in many states including Texas (and this was the law even before the recent Texas "tort reform"), one cannot even file a lawsuit against a doctor, nurse, hospital, nursing home, or other health care provider until the patient can find a same-field expert (i.e., an OB/GYN to serve as an expert in an OB/GYN malpractice case, a neurologist to serve as an expert in a neurology malpractice case, etc.) who will give sworn testimony listing what the standard of care demanded of the health care provider, how the health care provider fell short of that standard of care, and exactly how that shortfall caused the patient to suffer specific harm.