Cyrus Dugger

A Critique of Texas’ Anti-Courts Amendment

In 2003 an amendment to Texas' state constitution was included in a tort "reform" bill passed by referendum capping non-economic damages in medical malpractice in order to neutralize the "open courts" provision of the Texas constitution. This "open courts" provision had caused previous tort "reform" damage caps to be found unconstitutional in Texas. That provision reads:

Excessive bail shall not be required, nor excessive fines imposed, nor cruel or unusual punishment inflicted. All courts shall be open, and every person for an injury done him, in his lands, goods, person or reputation, shall have remedy by due course of law. (link)

Here's a few excerpts of critiques of the amendment of the state constitution from an article in the Texarkana Gazette by Ashley Gardner published before the amendment was passed.

[L]lawyers say the amendment is taking the power out of juries' hands to make decisions based on the evidence presented in individual cases.

The kicker to this amendment is that after Jan. 1, 2005, it could be applied to "actions" other than those relating to medical malpractice, meaning that the same cap could be applied to lawsuits of any kind.

"Basically, what it does is take control away from juries and judges and lets the legislature decide what it believes should be the proper caps or the maximum amount a person can receive. It's being touted as medical malpractice reform, but what lawyers are most concerned about is it could be amended to put caps on all kinds of cases, not just medical malpractice," said Monty Murry, a local personal injury lawyer.

Meaning the same caps could apply to lawsuits filed against drunk drivers or large companies that manufacture faulty products. Murry also said the $750,000 cap was deceptive because few cases would hold two facilities liable for one injury.

"I've never seen a case in all my years of practice where two hospitals can be held responsible for the same injury." (link)

David Carter, a civil trial specialist, believes the amendment would drastically alter the judicial system in Texas.

"Proposition 12 would allow politicians and lobbyists to take the place of juries in all types of civil cases. The language of Prop 12 is extremely misleading. It specifically mentions only claims against health care providers. When in fact, it will apply to all civil actions.

"I find it strange that these legislatures trust juries enough to vote ... and to impose the death penalty ... yet when it comes to assessing economic damages against businesses and insurance companies, the same jurors cannot be trusted," Carter said.

"I regularly represent big businesses in civil cases and I can tell you firsthand that the system is not slanted in favor of individuals. Big business and insurance companies don't need the additional protection that Proposition 12 offers them and that's the bottom line."(link)

For your reading pleasure, here is a section of the text of the anti-open courts amendment:

(b) Notwithstanding any other provision of this constitution, the legislature by statute may determine the limit of liability for all damages and losses, however characterized, other than economic damages, of a provider of medical or health care with respect to treatment, lack of treatment, or other claimed departure from an accepted standard of medical or health care or safety, however characterized, that is or is claimed to be a cause of, or that contributes or is claimed to contribute to, disease, injury, or death of a person. This subsection applies without regard to whether the claim or cause of action arises under or is derived from common law, a statute, or other law, including any claim or cause of action based or sounding in tort, contract, or any other theory or any combination of theories of liability. The claim or cause of action includes a medical or health care liability claim as defined by the legislature. (c) Notwithstanding any other provision of this constitution, after January 1, 2005, the legislature by statute may determine the limit of liability for all damages and losses, however characterized, other than economic damages, in a claim or cause of action not covered by Subsection (b) of this section. This subsection applies without regard to whether the claim or cause of action arises under or is derived from common law, a statute, or other law, including any claim or cause of action based or sounding in tort, contract, or any other theory or any combination of theories of liability. (link) (emphasis added)

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Posted at 12:30 AM, Jan 15, 2007 in
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