The Nelson Law Firm Blog

Abbott Faces Questions On Turnabout and Fair Play

Texas Tribune by Jay Root

When Greg Abbott’s spine was crushed by a falling oak tree in 1984 he had no health insurance, no paycheck and no feeling in his legs.

But he had a good lawyer and, back then, access to a civil justice system that was generally hospitable toward plaintiffs. So Abbott did what many people would do in his situation: he sued.

Nearly 30 years later, as Texas attorney general and the leading candidate for governor, Abbott is facing new questions about the multimillion-dollar settlement he was awarded and about his advocacy of laws that critics say have tilted the judicial scales toward civil defendants.

Those critics, generally Democrats who oppose the Republican-backed lawsuit curbs, say the policies Abbott has fiercely promoted over his career as a judge and elected official make it virtually impossible for a plaintiff to win the kind of award he got.

“You would think that a young man, at the start of his career, crippled by an injury, would want to make sure that others that may have the misfortune to follow in his footsteps would ensure that those people had the opportunity to be compensated for their injuries in the same way he was,” said Tommy Fibich, a Democratic donor and personal injury lawyer. “He instead closed the door because that would help him get re-elected.”

Read the rest of the article. 

 

Statesman Editorial Board Commentary: Tort reform's slight impact no shock

Statesman.com

It shouldn't have surprised anyone that a new study found that tort reform didn't lower health care costs in Texas, at least health care costs associated with Medicare. To a large degree, tort reform is an article of political faith empirically averse to contrary facts.

As the American-Statesman's Mary Ann Roser reported this week, a study by University of Texas law professor Charles Silver and colleagues from Northwestern University and the University of Illinois looked at Medicare spending in Texas between 2002 and 2009 and found no evidence that capping medical malpractice payouts led to lower health care costs.

In 2003, Texas voters narrowly amended the state Constitution — 51.1 percent to 48.9 percent — to limit payouts in medical malpractice lawsuits. The vote was held on a Saturday in mid-September rather than the usual Tuesday in November because tort reform's supporters wanted to guarantee a low turnout. It was a shameful but smart political move: Low turnout favored tort reform's passage.

Proposition 12, as the proposed amendment was known, put a $750,000 total cap on the noneconomic damages, such as pain and suffering, a jury can award a victim of medical negligence: $250,000 maximum from a doctor and $500,000 from a hospital or other medical institution. It did not limit actual damages — payments to cover lost wages, medical bills, disability and so on.

We tepidly supported the proposition. After all, voters were being asked to limit their rights should they fall victim to medical error. Still, reservations noted, we crossed our fingers in the hopes the amendment would reduce medical malpractice insurance premiums.

Supporters of the amendment claimed that limiting jury awards in medical malpractice lawsuits would reduce the number of suits, cut the cost of medical malpractice insurance for doctors, increase the number of doctors practicing in Texas and lower costs for patients.

The number of malpractice suits and payouts did decrease — with a $750,000 cap making litigation cost-prohibitive, how could it not? Supporters also say tort reform helped bring more doctors to Texas.

Jon Opelt, executive director of Texas Alliance for Patient Access, told Roser that tort reform can be credited for bringing nearly 5,000 more doctors to Texas than can be accounted for by population growth. Another study by Silver's group, as yet unpublished, challenges those claims, Roser reported. The number of doctors who treat patients — Opelt's figure, Silver says, includes administrators, teachers and physicians who don't directly deal with patients — grew more slowly after tort reform than it did before.

Tort reform may have increased the number of doctors in two high-risk areas: obstetrics and emergency room medicine. The lack of obstetricians in South Texas, allegedly driven out by generous jury awards that caused astronomical insurance rates in that part of the state, was a major argument used to win tort reform, though the number of obstetricians in other parts of the state appeared unrelated to insurance rates.

Silver's study was limited to looking at Medicare spending. It's narrow time frame also only includes reform's first few years.

The study fails to surprise because in the years and months leading up to 2003's constitutional vote, there were numerous reports contradicting claims of an out-of-control civil justice system. A 2002 survey by the State Board of Medical Examiners, which licenses Texas' physicians, showed that malpractice claims in Texas had reached a four-year low.

A summer 2003 report by the General Accounting Office, the investigative arm of Congress, found claims that patients in other states were losing access to health care because high malpractice premiums were forcing doctors to leave their practices to be either exaggerated or outright false.

There were other reports showing that many malpractice claims resulted in no compensation paid, that malpractice litigation wasn't a significant factor in overall health care costs, and that malpractice claims and awards had little to do with the rise in medical malpractice insurance rates. Supporters of tort reform never were inclined toward investigating the insurance industry to see what responsibility changes in the market bore for higher rates.

Supporters of tort reform often answered these studies with anecdotal evidence and appeals to "common sense." It was hard for critics of tort reform to counter an innate dislike of so-called trial lawyers, the politically charged semantics of "frivolous lawsuits" and the political exploitation of ridiculously high jury awards — though rare, such awards always drew widespread media attention and resonated with voters.

Silver told Roser he was "very pessimistic" policymakers will heed the study. His pessimism is justified. The Texas Legislature will not revisit tort reform anytime soon, and Gov. Rick Perry's office brushed off Silver's study by calling tort reform "a huge success."

The idea of national limits on malpractice damages percolates in Congress. If the issue rises above a simmer, don't expect Silver's study and others like it — past, present or future — to change the convictions of tort reformers one bit; if anything, such studies might just deepen them.

 

New study: Tort reform has not reduced health care costs in Texas

Austin American Statesman by Mary Ann Rosner

A new study found no evidence that health care costs in Texas dipped after a 2003 constitutional amendment limited payouts in medical malpractice lawsuits, despite claims made to voters by some backers of tort reform.

The researchers, who include University of Texas law professor Charles Silver, examined Medicare spending in Texas counties and saw no reduction in doctors' fees for seniors and disabled patients between 2002 and 2009. A 2003 voter campaign in Texas, and some congressional backers of Texas-style tort reform in every state, however, argued that capping damage awards would not only curb malpractice lawsuits and insurance costs for doctors, it would lower costs for patients while boosting their access to physicians.

Tort reform is a controversial topic likely to be resurrected by Republicans and doctors' groups who hoped to make it part of the 2010 federal health care law.

The researchers' findings come after a report last fall in which the Ralph Nader-founded consumer group Public Citizen said it found Medicare spending in Texas rose much faster than the national average after tort reform. Critics of that study said that tort reform leaders never promised health care spending would decline and noted that caps on damage awards brought steep drops in malpractice insurance rates for doctors and large increases in new doctors coming to Texas.

Another study yet to be published on physician supply and tort reform, also by Silver's group, agrees that malpractice suits and payouts sharply dropped after tort reform. But that study strongly disputes claims of a mass exodus of Texas doctors before tort reform and huge increases afterward.

 

 

Investigation: Tort reforms limit options for some Texans

KDFW by Becky Oliver

"Proposition 12 protects your family," said Anita Perry in a television commercial.

But did it? The reform put caps of $250,000 on non-economic damages like pain and suffering. That means people who don't work, like the elderly, babies and stay-at-home parents are limited even if they win a malpractice lawsuit.

Perry called it a win for Texans and during his presidential run he claimed much-needed doctors were coming to Texas.

"This last year, 21,000 more physicians [are] practicing medicine in Texas because they know they can come there and do what they love and not be sued frivolously," Perry said.

But within days Politifact, a government fact checking project run by the Tampa Bay Times, reported Perry was "flat out wrong." It said his numbers were off by almost 8,000.

With the courthouse doors being closed off to so many, Fox 4 questioned who are the winners and the losers.

* * *

"Someone needs to stand up and say this has got to stop," said Bill Putnam.

Every Sunday for the past three years, Bill and Kelly Putnam of Frisco take to the streets in front of the Signature Point Nursing Home.

They say a nurse forced medicine into Kelly's dad's feeding tube using a syringe. The liquid went into his lungs. The state licensing authority found "no deficiencies" and the home says, "No evidence to substantiate the Putnam's claim."

But the Texas Board of Nursing found the nurse involved committed numerous medical errors and the home directed the nurse to change her medical records which may have been intended to "deceive or mislead." The home disagrees with the nursing board's findings.

"The people we were supposed to be protecting are the ones we've thrown under the bus," said Bill Putnam.

The Putnams don't believe the value of a human life should be based on a paycheck.

"We threw legitimate lawsuits out the door," Bill Putnam continued.

"It is holding a person accountable for their actions," said Kelly Putnam. "We never had a clue that tort reform would have an impact on our life like this. It can happen to anybody." 

The Bernals struggle to get the best care for their daughter Kaylee. After complications at birth, she cannot walk or talk. Now they have to depend on Medicaid so taxpayers foot the bill.

"All we are trying to do is make the best of a bad situation with our daughter," said Robert Bernal. "We should leave it up to a jury to make these decisions."

And the memory of baby Ava and the pain of losing her will live with the Dickersons forever. The Texas Board of Medical Examiners found their doctor, who is a specialist, "failed to recognize and diagnose" their baby's congenital diaphragmatic hernia during an ultrasound.

That failure "left the [mother] with no opportunity to seek treatment for the fetus." The board fined him and ordered him to get more training. For the Dickersons, it felt like a slap on the wrist.

"We feel like it is going to be overlooked," said Jennifer Dickerson. "It has completely changed our lives."

The Dickersons didn't just lose their daughter; they feel like the court house doors were shut in their face.

"Like the insurance companies rule the world," said Todd Dickerson. "They won, and they don't care," added Jennifer Dickerson.

Kelly and Bill Putnam are not just speaking out, they are organizing. They are building a website and say they will continue to picket every Sunday, the day Kelly's dad died.  

 

 

Hot Coffee Movie -- Take Action: Protect your access to the civil justice system

Hot Coffee Take Action -- protect your access to the civil justice system. Join the Holiday Gift Drive that makes it easy for you to send copies of HOT COFFEE to lawmakers for $10 a copy. 

FALSE: Texas added 21,000 doctors because of tort reform

Politifact  

This is a fact check from August, but Rick Perry keeps making the claim on the campaign trail.

Perry said Texas has 21,000 more doctors thanks to tort reform. That’s flat out wrong. Texas has only about 13,000 more doctors in the state and the historic trends suggest that population growth was the driving factor. We rate his statement False.

See also, the story from Beaumont Enterprise putting Perry's figure at 23,000. 

@susansaladoff explains tort reform and discusses the myth of frivolous lawsuits via @ColbertReport

Colbert Report

Documentarian Susan Saladoff explores how the media and corporate America have manipulated the public into believing the civil justice system is broken.

No Better Medical Care, Thanks to Texas Tort Reform

Texas Tribune Guest Column by Charles M. Silver

The 2003 statute did have two demonstrable effects. First, it made doctors, hospitals and malpractice insurers millions of dollars richer by devaluing the claims of injured patients. Various sources report that premiums for liability coverage fell by half, and a study by a research group to which I belong finds that, after 2003, the number of dollars flowing to patients declined by more than 70 percent. This is a straightforward redistribution of wealth from malpractice victims to the proponents of tort reform. Second, the statute put many contingent fee lawyers out of business. If you’ve tried to find a lawyer to handle a med mal claim, you’ll have discovered this truth first-hand.

In my opinion, these were the only effects the 2003 statute could reasonably have been predicted to have. They were also the effects, I believe, that the statute’s proponents — including Marcus, Gov. Rick Perry and other Republicans — wanted. Everything else, such as the promised improvements in access to health care and reductions in health care costs, was cotton candy spun to win Texans’ votes and hide the proponents’ self-interest.

Texas tort law failed to cut costs, add many doctors, report says

Statesman.com By Mary Ann Roser

We’ve heard a lot of chatter in the past few years about the pluses and minuses of a Texas law that limits medical malpractice lawsuits — during the debate over what to include in the federal health care law and, more recently, on the presidential campaign trail.

Today, a national report weighs in. It says the 2003 Texas law that limited damage awards in malpractice suits has caused health care spending to rise in Texas and has not significantly increased the number of doctors in the Lone Star State.

Specifically, the report by Public Citizen claims that Medicare spending in Texas has risen faster than the national average and so have insurance premiums for private health care coverage. It also says that, contrary to claims by Gov. Rick Perry on the presidential campaign trail, the per capita increase in the number of doctors practicing in the state has been much slower since the state passed the so-called “tort reform” law than it was before the law.

Businesses’ fear of U.S. jury system is irrational

Houston Chronicle an excellent opinion by Tom Melsheimer (managing principal at Fish & Richardson in Dallas) and Craig David Smith (judge of the 192nd Civil District Court in Dallas County)

With no shortage of real threats to keep U.S. executives awake at night, it's surprising that so much time and energy is wasted trying to make sure that 12 average citizens in a jury box are not allowed to hear their business grievances. This fear of the jury system has become a pervasive phobia for many in corporate America.

Take former Halliburton subsidiary KBR, which spent four years and no doubt an enormous amount of legal fees fighting tooth and nail to keep a jury from hearing Jamie Leigh Jones' claims that she was drugged and raped by a KBR coworker while working for the defense contractor in Iraq. Like many of its business peers, the Houston-based KBR instead preferred to have the claim handled discreetly, behind closed doors, in what is widely believed to be a more business-friendly arbitration venue. In fact, the case wound up in a federal courtroom in Houston only after U.S. Senate intervention that made a sexual assault exception for the standard employee arbitration clauses for defense contractors.

Funny thing, when jurors were finally allowed to weigh the evidence earlier this month, they agreed that Jones' claims were not supported by the evidence and testimony. Meanwhile, the public airing of the allegations in open court revealed key holes in the evidence and gaps in Jones' account of what happened. The jury also heard compelling evidence that she had exaggerated and embellished her claims, among them that KBR locked her in a shipping container and restricted her access to a telephone after she reported the attack.

Had this case been resolved in arbitration as KBR had originally hoped, the outcome likely would have been the same. But the lack of transparency inherent in arbitration proceedings would have done nothing to resolve doubt about the allegations and the final outcome. KBR's favorable outcome would have been additional ammunition for those inclined to think the worst of its parent company at the time, Halliburton, whose former CEO, former Vice President Dick Cheney, was one of the Iraq war's most vocal supporters.

Of course there are plenty of examples of individual jurors behaving badly, but as the KBR case and so many others show, jurors do take their oaths seriously and there's good reason to support the unbeholden jury system guaranteed by our Founding Fathers in the Bill of Rights.

The long and admirable fight of Jones to remove her case from arbitration and take it to a jury had a prominent role in the Hot Coffee documentary now in regular rotation on HBO. The film's namesake case, the 1994 verdict by a New Mexico jury against McDonald's for serving dangerously hot coffee and causing disfiguring burns to an 81-year-old woman, is another popular, if misguided, reference point for those who want to criticize our jury system.

A look at the facts shows the outcome to be another example of the system working, as opposed to a poster child for tort reform. Everyone blamed Stella Liebeck for spilling coffee on herself, but no one, until the jury, considered that the company might bear some responsibility for ignoring repeated warnings and a documented string of injuries. This notion of shared responsibility doesn't let the individual off the hook. It just doesn't put them on the hook alone.

Jurors make a solemn pledge, and it's reassuring to know that that still means something today. That's why a jury could rule against a woman who claimed KBR was responsible for her sexual assault. That's how a jury could hold a business partially responsible for knowingly selling coffee so hot that it caused disfiguring burns.