Legislation to limit liability

On September 13th, the controversial Proposition 12 comes to avote. The two primary interest groups, medical and legalprofessionals, have assaulted citizens with months of emotionallycharged and well funded television advertisements.

Unfortunately, both groups are clouding the issue with theirbiases. Neither group has a link to the actual text of theproposition on their Web sites, and key facts are creativelytwisted by both sides.

Therefore, a bit of background clarification is beneficial.Proposition 12 (also known as House Joint Resolution 3 or HJR3) isan amendment to the Texas State Constitution that permitslegislators to “determine the limit of liability for alldamages and losses… other than economic damages.”Non-economic damages, commonly known as ‘pain andsuffering,’ are entirely separate from medical bills, lostwages, etc.

The resolution initially applies only to civil cases involving”a provider of medical or health care,” but afterJanuary 1, 2005, legislators will be able to place caps onnon-economic damages in other areas, but a three-fifths majoritywould be required.

Proposition 12 was created in response to the passage of HouseBill 4 (HB4), which limits non-economic awards in medicalmalpractice suits. The ‘pain and suffering’ ceiling isset at $250,000 from a doctor (or team of doctors) and $250,000 perhealth care institution (max two institutions).

Contrary to popular belief, Proposition 12 itself does not passany caps; it merely gives Texas Congress the ability to do so.

Herein lies the opposition’s first argument: Proposition12 is unnecessary because HB4 already limits non-economic damagesin medical malpractice cases. This statement is deceitful becauseProposition 12 affirms the constitutionality of HB4. A similarmalpractice bill was declared unconstitutional in 1977.

If Proposition 12 fails, a slew of lawsuits arguing that awardcaps are unconstitutional will prevent HB4 from having any impactin Texas courts for an indefinite period.

Some personal injury lawyers are using this argument to persuadecitizens to oppose the proposition. Of all people, attorneys surelyunderstand that HB4 is powerless without Proposition 12. Any lawyerusing this argument is doing his or her profession a greatdisservice by speaking in such a dishonest manner, and ethicallawyers should censure their peers for misleading the public.

Another fraudulent argument claims that the courts will hearless lawsuits if Proposition 12 passes. Ironically, this statementhas been championed by both sides, but neither makes a validpoint.

Supporters of the proposition believe that courtrooms will becleared of frivolous lawsuits. Opponents say that citizens will beneglected of their right to a trial. These arguments are analogousin foundation but spun to serve different purposes.

Neither Proposition 12 nor HB4 limits the number of trials.Whether a plaintiff is suing because the internist’sstethoscope was too cold or because the surgeon was intoxicatedwhile performing open heart surgery, the trial will not bedismissed due to the proposed legislation.

Foreboding prophecies of future legislative limits are toopessimistic. Proposition 12 opponents fear that corrupt,conservative, capitalist Congressmen will enact low limits forpunishing corporations. They worry that businesses will pollute theair and sell unsafe products without facing monetaryretribution.

A more realistic target for the extended powers of legislationis automobile civil suits. Rather than giving corporate America afree pass to dump toxic waste into rivers, state legislators aremore likely to prevent corrupt citizens from earning absurdnon-economic prizes for fender-benders.

Nonetheless, Proposition 12 does alter the government’sbalance of power. The fact that courts are weakened while thelegislation gains power is undeniable. This shift should beconsidered very carefully when voting.

The general conservative reaction to any strengthening of thelegislative branch is skepticism or disapproval. However, thejudicial branch has clearly lost control of civil suits, and insuch a circumstance, lawmakers must act in the interests of theirconstituents.

One statistic is sufficient to prove this claim: the averagenon-economic award has skyrocketed from $318,666 in 1989 to$1,379,203 in 1999.

Furthermore, the classic conservative stance of laissez-faire inmarkets refers to standard, supply and demand situations where anunadulterated marketplace can reach a quantity/price equilibrium.Proposition 12 and HB4 affect non-economic damages awarded byuntrained and emotionally malleable juries in medical malpracticelawsuits. This setup is clearly not a standard economicmarketplace, and thus, proponents of laissez-faire should notoppose pain and suffering limits.

The mere concept of monetary awards for alleviating thesuffering of patients and punishing the negligence of doctors isquestionable. If a loved one is killed by an incompetent doctor,then a pain and suffering award ought to be an insulting gesture ofslapping a price tag on compassion.

Negligent doctors should be stripped of their licenses and, inthe most extreme cases, imprisoned. These consequences, along withthe untouched ‘economic’ liability, prevent Texas fromsinking into a “safe haven for bad doctors.”

Monetary compensation for quantifiable losses is unhampered byProposition 12. Economic awards, including medical bills and lostwages, are not limited. Patients need not fear that negligence canjeopardize their annual income or create a mountain of hospitalbills. Any expenses that are measurable in dollars, such as hiringa chauffer due to a loss of driving ability, are consideredeconomic and thus do not fall under the limits of HB4.

Only the subjective and ballooning non-economic payments aretargeted by Proposition 12. These ‘pain and suffering’awards have a terribly detrimental effect on society whilebenefiting a select few.

Health care providers are experiencing increasing insurancecosts from these large awards. Some doctors are responding to theadded expense by retiring early or moving, while others are passingthe additional costs to patients.

There are no obstetricians in more than 150 counties in Texas,and 120 counties lack a pediatrician. Since 2000, the number ofTexas medical liability companies has dwindled from seventeen tofour. Less supply leads to higher prices.

Medical bills are bloating faster than SMU’s tuition. Askyour parents – they will have an earful to say about bothfees.

Non-economic damages are a tax to the majority of Texans.Augmented health insurance and medical bills are a transfer paymentfrom the Many to the Few. Additionally, these awards are partiallyresponsible for the staggering increase in Medicaid expenditures,which will certainly decrease if medical liability costs decrease.Currently, the $13 billion Medicaid budget is more than 20% of thestate budget.

Regardless of your stance, please remember to vote beforeheading to Waco for the football game on Saturday. For once, thebiggest September battle in Texas will not be decided on thegridiron.