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TLR Advocate: Spring 2002

In this issue...


 

TLR'S 10,000TH SUPPORTER, SOMETHING HAS TO BE DONE.

Dr. Nancy Finney, a San Antonio Obstetrician, has become TLR's 10,000th supporter. "When I began practicing medicine I saw how abusive lawsuits have changed medicine for the worse. That's why I became a TLR supporter."

 

"Before I had even seen my first patient, I had to pay a $20,000 lump sum for malpractice insurance.

Dr. Finney started her own practice in San Antonio just two years ago but has already been confronted with the harsh reality of excessive litigation. "Before I had even seen my first patient, I had to pay a $20,000 lump sum for malpractice insurance. That's money that has to come from an increased patient load and higher fees. Lawsuits also mean more testing and more medical procedures designed not for better health care treatment but as a way of protecting physicians from lawsuits. Something has to be done."

 

Dr. Finney joins the ranks of 9,999 other Texas citizens from all walks of life who are convinced that citizens can make a difference in defining the appropriate role of litigation in our society. "We know from experience that when informed citizens respectfully communicate with their legislators at the right moment in the legislative process we see positive and constructive results," said Richard Weekley, TLR President & CEO.

"Over the past two years a team of TLR speakers have crisscrossed Texas taking our message in almost 300 speeches to community groups in towns and cities from El Paso to Wichita Falls," said Ken Hoagland, TLR's Communications Director. "Everywhere we go, we meet people who want to help but have not known how. Dr. Finney is a welcome addition to our growing army of citizens who are willing to pitch in to help create a fair and balanced civil justice system in Texas."

Dr. Finney's interest in correcting abuses in the civil justice system reflects a growing concern that Texas is in the grips of a medical malpractice insurance crisis. Hundreds of physicians recently participated in a "Day of Awareness" that featured press conferences, protest rallies and walkouts across Texas. In some especially litigation-prone areas of the state, medical malpractice premiums have soared 300% this year. While Texas had 17 medical malpractice insurers just a few years ago, that number has dropped to four in the last year.

"We were pleased to see that Governor Rick Perry has suggested legislation for the coming legislative session to address this growing problem. There is a real danger that the current abuses in litigation will literally force medical professionals to abandon whole areas of our state," said Richard Trabulsi, TLR Legislative Director.

 


TLR PLAYED DECISIVE ROLE IN PRO-TORT REFORM CANDIDATE SUCCESSES IN 2002 PRIMARIES

 

In both parties' primary elections, every Senate candidate we supported won their race. Of the 19 House races in either the Democratic or Republican primary in which we made an endorsement, only one TLR PAC-supported candidate lost, and that was in a very close runoff election (by less than 1%).

Clearly, Texans For Lawsuit Reform PAC played a key and decisive role in many legislative and judicial races in this primary election.

Texans For Lawsuit Reform has a determined agenda for the upcoming session of the Texas Legislature. Years of research and discussion have produced a set of proposals that we believe, if passed, will begin to restore the role of litigation to its fair, sensible and traditional role in society. These proposals will also help resolve many of the most flagrant, costly and destructive abuses.

A great deal rides on the outcome of this year's elections. Now more than ever, it is vitally important to elect candidates for public office who believe in a fair and balanced civil justice system. Texans For Lawsuit Reform PAC played a key and decisive role in many legislative and judicial races this primary election and we would like to share with you the results of our efforts.

Texas Senate. The Texas Senate is extraordinarily important to enacting new reforms, to preserving existing reforms, and to resisting the constant rollback pressure from the plaintiffs' bar. Two pro-reform Senate incumbents were challenged in the Republican primary, and we supported each of them in recognition of their support of a fair and balanced civil justice system: Lt. Governor Bill Ratliff and Sen. Jeff Wentworth. Both of these tort reform supporters won their election. TLR PAC supported several pro-reform House members who ran for open Senate seats in the Republican primary. We are pleased to report that all four supporters “ Kip Averitt, Kim Brimer, Kyle Janek, and Tommy Williams “ were successful. In addition, there was a special election in District 30 to replace Sen. Tom Haywood after his unfortunate death. TLR PAC vigorously supported Wichita Falls businessman Craig Estes, who won the special election, and we supported him again in the Republican primary, in which he held his newly won seat.

TLR PAC supports conservative pro-reform Democrats across the state. In particular, there was one Democratic primary race in which TLR PAC played a significant role: the open seat contest to replace retiring State Senator Carlos Truan (who was a consistent opponent of tort reform). TLR PAC supported Representative Juan "Chuy" Hinojosa against a serious and well-funded opponent in both the primary and the runoff, and Rep. Hinojosa was the victor.

In both parties' primary elections, every Senate candidate we supported won their race.

Texas House of Representatives. Because a number of tort reform bills have been thwarted in the Texas House of Representatives during the past few sessions, TLR PAC is fully committed to supporting candidates for the Texas House who will support litigation reform. It is significant to note that the plaintiffs' bar pursued an interesting ploy in this year's Republican primary by running several of their own for House seats. TLR PAC vigorously supported pro-reform candidates against the plaintiffs' lawyers in those contests, and the TLR PACendorsed candidate defeated the plaintiffs' lawyer in every single one of these key Republican primary races.

Of the 19 House races in either the Democratic or Republican primary in which we made an endorsement, only one TLR PAC-supported candidate lost, and that was in a very close runoff election (by less than 1%).

The Texas Supreme Court. TLR PAC supported Chief Justice Tom Phillips, who was unopposed in the primary, and Justice Wallace Jefferson, who won his contested race. We also supported Justice Michael Schneider of the Houston Court of Appeals, who was unopposed in the Republican primary for the Supreme Court seat being vacated by the retirement of Justice Baker. In the race for the seat being vacated by the retirement of Justice Hankinson, we actively supported Judge Dale Wainwright in the run-off against Judge Elizabeth Ray. Judge Wainwright won a stunning statewide upset over Judge Ray, who was heavily funded by plaintiffs' lawyers, especially Baron & Budd, Walter Umphrey, John Eddie Williams and John O'Quinn. Tort reformers suffered only one serious disappointment. Incumbent Justice Xavier Rodriguez, supported by TLR PAC, lost his Republican primary race.

The plaintiffs' bar will pull out all the stops to try to defeat conservative Supreme Court judges in this fall's general election. We must continue to work vigorously to maintain the exceptionally high quality of the current Texas Supreme Court, one of the most admired and respected appellate courts in the United States.

Thanks to your support of TLR PAC, we are off to a great start in this absolutely critical election year. We hope that you will continue to work with us as we prepare for the important and determinative elections this fall.

 


Thanks to your support of TLR PAC, we are off to a great start in this absolutely critical election year. We hope that you will continue to work with us as we prepare for the important and determinative elections this fall. Now that we have our foot in the door, we need to finish the job in this fall's general election

TEXANS FOR LAWSUIT REFORM AND TEXAS MEDICAL ASSOCIATION DISCUSS FUTURE COOPERATION

On March 16, Dick Trabulsi, Chairman of Legislative Affairs for TLR, and Leo Linbeck, TLR Chairman, met with Dr. Tom Hancher, current president of the Texas Medical Association, Dr. Fred Marion, the incoming president of the TMA, and several other doctors who are active in the volunteer leadership of TMA. This meeting followed several discussions between Dick and Dr. Hancher concerning ways to improve dialogue between TLR and TMA to assure that there never again is the kind of failure in communications between our organizations that occurred during and immediately following the last legislative session.

 

We have asked our respective legal counsel to start discussion immediately concerning issues related to arbitration provisions in medical industry contracts, to assure that there is a clear understanding of our respective positions concerning alternative dispute resolution and to determine whether there are areas of common ground concerning ADR.

Our meeting was both interesting and productive. We discussed an array of civil litigation issues that are important to the medical profession and we explored ways to work cooperatively on those issues in the future. Dr. Hancher and Dick Trabulsi will communicate on a regular and continuing basis. We will hold other volunteer- to-volunteer meetings whenever called for. We will encourage our staffs and lobbying teams to establish procedures that will provide fail-safe communication between our organizations in the future. We have asked our respective legal counsel to start discussion immediately concerning issues related to arbitration provisions in medical industry contracts, to assure that there is a clear understanding of our respective positions concerning alternative dispute resolution and to determine whether there are areas of common ground concerning ADR.

 

Medical care in Texas is in a civil-liability crisis. Insurance premiums are rising substantially. In parts of Texas, non-meritorious and abusive medical malpractice cases are so prevalent and destructive that doctors are literally moving out of those areas of our State. TLR is looking forward to reviewing medical malpractice reforms that are being studied by the TMA and other associations and alliances in the health care industry. We trust that there will be fair and reasonable reforms proposed in the next legislative session that TLR and all organizations interested in a rational and balanced civil justice system will support. We know that Governor Perry is very concerned about the plaintiffs' bar assault on the medical profession, and he recently announced a strong and sensible package for medical malpractice reform, which TLR enthusiastically supports. Clearly, the time for serious medical malpractice reform in Texas is long overdue, and must be addressed by our next Legislature.

 


A REVIEW OF TLR'S POLICIES ON LIST PRIVACY, FUNDRAISING, AND POLITICAL ENDORSEMENTS

 

TLR's supporter's name and address will not be loaned or sold to any political candidates, advocacy groups, commercial enterprises or any other entity. It's a cardinal rule with TLR.You trusted us with your name and we will not share it with others.

TLR speakers continue to speak across Texas asking citizens to join our effort in bringing fairness and balance to the Texas civil justice system.

 

Many have joined TLR's efforts and have provided us with their names, addresses and e-mail so that we can notify supporters when crucial issues come before the legislature so that their voice can be heard. Here are a few things that supporters should know about TLR and its successful grassroots advocacy program:

 

  1. TLR's supporter's name and address will not be loaned or sold to any political candidates, advocacy groups, commercial enterprises or any other entity. It's a cardinal rule with TLR. You trusted us with your name and we will not share it with others.

     

  2. TLR or TLR Political Action Committee (TLR PAC) may from time to time ask supporters for contributions to our cause or for political candidates. No supporter is obligated in any way to make such contributions. That having been said, TLR contributions offset the cost of mailings, newsletters, legislative alerts, research, and lobbying and TLR PAC contributions help our organization elect pro-reform candidates.

     

  3. TLR PAC is the political arm of Texans for Lawsuit Reform which operates under a simple rule: help those candidates who will advance the cause of tort reform in Texas. Republicans, Democrats and Independents are equally deserving of TLR PAC support and TLR would never have achieved success in the legislature without the bi-partisan support of legislators. TLR will make recommendations to our supporters before primaries, run-offs and general elections only after exhaustive research. Ultimately, however, we believe that for whomever a citizen votes, those elected officials should work for all the people of Texas and not just the well-financed plaintiff lawyers' lobby.

 


CLASS ACTION REFORM NEEDED TO STOP COERCED SETTLEMENTS, ENTREPRENEURIAL LAWSUITS

After months of research, Texans for Lawsuit Reform has begun finalizing the legislative agenda for the 2003 session of the Texas Legislature. Harvard law professors, the TLR legal research and legislative team, business leaders and the TLR leadership team have exhaustively examined a broad range of issues. In the coming months, TLR will present highlights of the Legislative Agenda.

 

CLASS ACTION REFORM

Background: In years past, class action litigation “ which groups many individual lawsuits together into a single legal action “ was a rarity in Texas courts. Because these cases were so rare, Texas judges would routinely grant "class action certification", a necessary legal step to certify that those in the class had similar grievances and could be delivered justice in a single judgment or settlement. Today there is wide variation between lower State Court judges applying the certification requirement. TLR's legal research team has, disturbingly, been unable to find an example of any class action lawsuit that has been decided by a Texas jury in the last 15 years “ all such lawsuits have settled and often with discount coupons for the class and millions of dollars of legal fees for the law firm bringing the action.

Increasingly, class action litigation has become the weapon of choice for "entrepreneurial" law firms seeking multi-million dollar legal fees but little for members of the class. In addition, administrative solutions through regulatory agencies are not being used before class action status is sought. Such remedies could very well deliver quick and fair solutions without the additional time and expense of a class action lawsuit.

 

TLR's legal research team has, disturbingly, been unable to find an example of any class action lawsuit that has been decided by a Texas jury in the last 15 years”all such lawsuits have settled and often with discount coupons for the class and millions of dollars of legal fees for the law firm bringing the action.

LAWSUIT ABUSE: Certification of the class has become the "trigger mechanism" that forces businesses into settlement talks irrespective of culpability or responsibility. Because this is known by both defendants and plaintiffs, settlements “ even of legitimate lawsuits “ have increasingly delivered less and less to the class and more and more to the plaintiff's lawyers. Each settlement is paid for ultimately by the consumers of the product or service in terms of higher prices, by the shareholders of the company through falling stock prices and by the employees of the affected company in benefits and salary pressure. Social scientists have never calculated the cost of class action litigation primarily designed to deliver huge legal fees, but it undoubtedly represents a significant drain on our state and national economies.

 

LEGISLATIVE SOLUTION: TLR will develop legislation that allows the Texas Supreme Court to hear appeals of lower Court's certification of a class. Such legislation should also require class representatives to exhaust administrative remedies before pursuing a class action in the court system. Finally, such legislation will require that legal fees in such actions be based on a reasonable hourly rate multiplied by the reasonable and necessary time and labor expended by the lawyer for the class so that excessive legal fees do not reduce compensation available to members of the class.

 

"We were pleased to see that Governor Rick Perry has suggested legislation for the coming legislative session to address this growing problem. There is a real danger that the current abuses in litigation will literally force medical professionals to abandon whole areas of our state."

 


THE INVISIBLE SEAT BELT “ JURIES ARE DENIED THE FACTS

Background: Sometimes laws are written in such a way that it leaves any observer scratching his or her head and asking "Why?" Such is the case with an obscure portion of the Texas Transportation Code which contains laws relating to traffic safety.

Many years ago it was proven that people wearing seat belts are much more likely to survive automobile accidents and escape serious injury. Current Texas law recognizes the proven benefits of seat belts and requires the driver and front seat passenger and any child from 4-15 to wear a seat belt.

Common sense tells us that anyone who violates the seat belt law is potentially taking their life in their own hands. Seatbelt violators voluntarily bring considerable additional risks upon themselves. Unfortunately, when those same people are injured in accidents when they are not wearing seat belts, many still file civil lawsuits and attempt to pin 100% of the blame for their injuries on the other driver, even though part or all of their injuries could have been avoided by wearing their seatbelt.

Amazingly, the non-use of a seat belt is not admissible in a Texas civil trial. That means that driver being sued can not even mention that the plaintiff was not wearing his seat belt and may be partly responsible for his own injuries.

The statute reads: "Use or nonuse of a safety belt is not admissible evidence in a civil trial." This lack of admissibility of non-use of seat belts means that juries cannot fully weigh the driver's responsibility in some auto accidents cases. TLR will work to repeal this section of the Transportation Code because it denies juries essential facts related to full responsibility in auto accidents.

Lawsuit Abuse: If the applicable statute were read literally, it would also prohibit evidence regarding the use of a seatbelt in a product liability case in which the plaintiff claimed the seatbelt was defectively designed and, therefore, failed to prevent injury in an accident. Thus, a plaintiff could sue, claiming a defective seat belt, while hiding from the jury the fact the plaintiff was not wearing a seat belt at the time of the accident. In most auto accident cases, especially where injuries are involved, juries hear evidence related to excessive speed, reckless driving or alcohol use or other behavior that might contribute to the accident or injury. Juries should also be allowed to hear whether a plaintiff was wearing a seatbelt and weigh the significance of such evidence in the same fashion as other evidence.

Legislative Solution: In the final analysis, the section of the Texas Transportation Code that prevents introduction of this important evidence is simply unnecessary, unfair and contradictory with other parts of Texas law. This subsection of the Transportation Code should be entirely repealed.

 

Amazingly, the non-use of a seat belt is not admissible in a Texas civil trial. That means that driver being sued can not even mention the plaintiff that was not wearing his seat belt may be partly responsibility for their own injuries.