Texas Monthly Magazine Attack Article on TLR
The lawsuit industry has found an ardent new defender in the November issue of Texas Monthly. In an article titled “Hurt? Injured? Need a Lawyer? Too Bad!” the magazine disparages the tort reform movement, the business community, the Texas Legislature, the Texas Supreme Court, and, above all, Texans for Lawsuit Reform.
Because the Legislature and most Texans have grown tired of hearing the shopworn claims of the plaintiff trial lawyers (and their trade group, the Texas Trial Lawyers Association or TTLA), the trial lawyers obviously needed a new friend–and have now found it in Texas Monthly.
|TO:||TLR Supporters and Friends|
|FROM:||Hugh Rice Kelly, General Counsel|
|DATE:||November 28, 2005|
|RE:||Texas Monthly Magazine Attack Article on TLR|
The lawsuit industry has found an ardent new defender in the November issue of Texas Monthly. In an article titled “Hurt? Injured? Need a Lawyer? Too Bad!” the magazine disparages the tort reform movement, the business community, the Texas Legislature, the Texas Supreme Court, and, above all, Texans for Lawsuit Reform. Because the Legislature and most Texans have grown tired of hearing the shopworn claims of the plaintiff trial lawyers (and their trade group, the Texas Trial Lawyers Association or TTLA), the trial lawyers obviously needed a new friend–and have now found it in Texas Monthly. It is natural to wonder whether the 154 pages of paid “Super Lawyers” vanity advertising in the magazine’s October issue suggest a natural affinity, but whatever motivated the magazine to publish this one-sided warm-over of the plaintiff lawyer press kit, the truth just didn’t seem to matter.
Because we have battled the plaintiff trial lawyers and their powerful special interest lobby for years, we have grown accustomed to their continuous barrage of false, distorted and deceptive claims. But we expected a magazine like Texas Monthly to aim higher than republishing the disinformation of a special interest group whose direct stake in legislation ranges well into the hundreds of millions of dollars (or, in the case of its most opulent members, billions).
|A.||The article’s incredible theme: reforms urged by TLR have left ordinary people out of luck, the courts closed, wrongdoing unchecked, and “the powerful simply get their way.”|
This article solemnly asserts the frightening claim that the leaders of TLR–and presumably its fourteen thousand supporters–are “rich and powerful Texans” whose sole motivation is to fatten business profits by slamming the courthouse doors in the face of tragic victims of assault, injury or death. “Ordinary people are out of luck” is the article’s recurrent theme, with details borrowed copiously and indiscriminately from the Texas Trial Lawyer Association’s library of story lines. TLR’s reform program does not promote fairness or level the playing field, the author claims: rather, it padlocks the playing field altogether. “Maybe that’s the point,” the author darkly opines toward the end of the article. “With the courts closed and the Legislature supine, the good people of TLR will have remade the world in their image, one in which there is no recourse for wrongdoing, one in which the powerful simply get their way.” Certainly one would expect an author who advances claims of such apocalyptic dimensions as the closing of Texas courts and the abolition of recourse for wrongdoing to document the case with compelling evidence–an expectation the article makes no serious attempt to meet. Talk is cheap, but proof is not.
When Texas Monthly approached us months ago, it promised to write a substantive, factual, and balanced story about tort reform in Texas. We took the editors at their word. Nevertheless, after TLR’s leaders devoted hours in interviews with the author, including extensive conferences with our communications director and lawyers and providing reams of information, none of this mattered. As published, the article reflects little serious research and no serious analysis, but is long on bombast and wrong on the law, wrong on the facts, and virtually devoid of balance.
Given the magazine’s claim to independence, we were particularly taken aback to discover that a simple fact sheet compiled by the Texas Department of Insurance that we sent to Texas Monthly–hoping to correct gross medical malpractice reform errors in the story–was immediately forwarded by the author directly to the Texas Trial Lawyers Association. The TTLA’s return e-mail, mistakenly routed to TLR, promised that TTLA would “get you some stuff” to counter this independent compilation of state agency information. Not only does this prove the magazine’s abdication of independence, it also strongly suggests an undisclosed alliance between the magazine and the state’s most powerful special interest opponent of litigation reform.
|B.||The article falsifies the reform achievements of a decade to support its claim that redress for wrongdoing is no longer possible in Texas.|
All of the human interest content of the article is devoted to medical malpractice reform, a measure we strongly supported that was led by a coalition of medical groups, and to complaints about home builders, which the writer awkwardly concedes had nothing to do with TLR. Eventually the article gets around to discussing the reform agenda originated by TLR itself, but its enumeration of alleged horror stories rests on a series of fictitious, erroneous and deceptive claims–including factual misstatements and objective errors. A more extensive listing is available on TLR’s website, but these are the Ten Worst:
1. Exploding Gas Tanks: Ford Wins? No. The story claims that when a Ford Pinto gas tank ruptures and burns the Pinto’s driver to death in a rear end collision, “Ford will almost certainly be able to shift the blame for its defective product to the driver of the other car.” To the contrary, under the proportionate responsibility reforms enacted in 2003, no such arbitrary rule is imposed. Rather, the allocation of responsibility is entrusted to the jury, which must apportion percentages based on the evidence they hear in the courtroom. Thus, a jury would likely require Ford to pay 100 percent for an exploding gas tank in a low-speed collision. The opposite would be the likely result if the rear impact occurred at a speed high enough to ignite a gas tank of normal design. Motor vehicle collisions occur under a huge variety of circumstances, rendering absurd any blanket claim that one party or the other “will almost certainly” escape liability.
2. Manufacturer Liable For 60 Percent Means Plaintiff “Eats” 40 Percent of His Judgment? No. The actual result is the reverse. This second automobile hypothetical changes the relevant facts by adding one more assumption: that the defendant motorist is both uninsured and is assigned 40 percent responsibility by the jury, as compared to 60 percent for the defendant automaker. The article then incorrectly claims that the innocent plaintiff in this case would “eat” 40 percent of his total judgment. The true answer is exactly the opposite: the plaintiff would “eat” no percent of his judgment, but could collect 100 percent from the manufacturer. Proportionate responsibility principles control in this case, just as they would in the exploding gas tank example, but the article fails to disclose that whenever a defendant’s responsibility exceeds 50 percent, proportionate responsibility law automatically places that defendant “on the hook” for 100 percent of the judgment.
3. Rape Victims: Landlords Avoid Liability? No again. In this example, the article again asserts categorically false claims about allocation of responsibility among defendants. This instance is dealt with under the same legal principles as the two automobile examples, differing mainly by posing the particularly shocking factual circumstance of a rape victim who would supposedly be denied justice by proportionate responsibility reforms because an “apartment owner can still avoid liability” even though the victim “lives in an apartment complex that lays off security guards and fails to maintain its locks.” It is certainly doubtful that any Texas jury would treat such a crime without sympathy for the victim or would go easy on a landlord’s callous carelessness, although there is no injustice in allowing the defendants to present whatever legitimate defenses they may choose to present. The falsity of the article’s claim on this point lies in its failure to mention that it is the jury, not some supposed arbitrary rule, which will determine allocation. No two cases are alike, and certainly no case of this kind can be summarized in a few lines of magazine text–which is precisely why the jury is best situated to hear all of the evidence and allocate responsibility accordingly.
4. Trial by Jury: Threatened by Reform? No–the contrary is true. Reforms in many cases expand the scope of the jury’s function. The plaintiff trial lawyers invariably oppose letting the jury decide issues whenever a reform promises to level the playing field by empowering the jury to rule on fairly and fully presented defenses as well as the plaintiff’s claims. The three proportionate responsibility examples discussed above illustrate the point: in each example, the reformed rules–opposed by the plaintiff’s bar–require the jury not only to hear all of the evidence concerning the conduct of those potentially responsible, but also to allocate fault based on the evidence heard in court. The plaintiff lawyers similarly oppose improvements in the fairness of juries whenever they hold an advantage through forum shopping, rule-bending or prejudice. For example, the plaintiff trial lawyers have repeatedly opposed venue and jurisdictional reforms, because they know they can drag defendants into counties where juries are notorious for their bias, pliability or tendency to award stratospheric damages.
5. Dishonest Pharmaceutical Defendants Shielded? No. The article’s list of fallacious claims also features the contention that after 2003, “if you took a drug… later recalled after studies proved it could cause fatal complications, the manufacturer can escape liability… if the instructions inside the package were approved by the FDA when you took the medicine.” In fact, the 2003 reform law establishes a common-sense rule requiring that when the U.S. Food and Drug Administration (FDA) authorizes a risky drug to be marketed, with prescribed warnings, its ruling regarding the content and adequacy of those warnings is presumptively binding in all courts–unless the manufacturer withheld or misrepresented information to the FDA, or unless the plaintiff establishes any one of four other conditions that remove the presumption.
The article fails to mention that almost any drug can be risky to human life or health under some circumstances, and the FDA permits the sale of such medicines when accompanied by FDA-approved warnings. This is even true for such common medicines as aspirin. It is both logical and fair to entrust these kinds of questions in the first instance to the FDA, a federal agency staffed with doctors and scientists dedicated to protecting the public from unsafe drugs. However, the reform statute also sensibly recognizes that a manufacturer who falsifies or withholds the truth from the FDA should lose its right to claim the protection of the FDA defense. In short, if the drug company fully and truthfully kept the FDA informed, it follows that the FDA’s licensing decision ought to control; but if the drug company lied to the FDA or withheld information, the 2003 law says the FDA defense vanishes–as it should.
6. ER Doctors: Free to Commit Malpractice? No. Borrowing yet another stock claim from the plaintiff trial lawyers, the article falsely claims that medical liability reforms have authorized careless emergency room physicians to commit malpractice with impunity. The general rule of liability, other than in government hospitals protected by immunity, is that medical professionals who are guilty of ordinary negligence remain liable in damages–with two principal exceptions that recognize special emergency-related circumstances: the Good Samaritan law, which protects those rendering volunteer emergency help; and a special provision protecting emergency personnel working under such threats as imminent death or loss of major bodily capabilities. The article apparently refers to the emergency provision, with its “wilful and wanton negligence” standard of care. In law, this combination of words is one formulation of the gross negligence standard. Gross negligence displaces the ordinary negligence standard when the doctor is attempting, for example, to stabilize a patient who is about to die of a heart attack or stroke. When the patient is stabilized–which would include the great majority of patients in emergency rooms at any given time–the standard reverts to ordinary negligence.
Against this legal framework, if the patient was about to die or suffer irreversible brain or disabling heart damage, for example, the physician would by definition be working in an extreme situation and be temporarily shielded from hindsight accusations by the gross negligence standard; if that same patient is still in the emergency room but his condition has been stabilized, the ordinary negligence rule would apply. By oversimplifying, the article misleads the reader. Wouldn’t it have been fair to tell the reader whether the heart attack victim is on the brink of death, for example, which is one of the narrow class of conditions in which the doctor’s emergency actions would be judged by the gross rather than the ordinary negligence standard? Or, on the other hand, that the emergency room heart attack victim had already been stabilized at the time the doctor read the EKG, when the “wilful and wanton negligence” gross negligence standard would have no application. Here as in many other areas of the article, oversimplification is tantamount to falsification.
7. Blind Babies Recover Thousands, Not Millions, in Damages? No. Among the most spectacular errors espoused in the article is the false assertion that the $250,000 noneconomic damages cap in healthcare liability cases, applied to a baby blinded by malpractice, “means there is a good chance that her only remedy is to receive a few hundred dollars a month for the rest of her life.” Obviously nobody checked that claim against the law books, because any infant blinded by malpractice would likely recover millions of dollars in lost income capacity and other economic damages.
It requires no speculation to show from the experience of other states, not to mention more than a century of Texas case law, that damage claims on behalf of severely disabled or blind babies and claims brought by non-working housewives or by retired people who suffer serious injuries or death, are entitled to economic damages, unaffected by the $250,000 cap on noneconomic damages in medical malpractice cases. Limits on pain and suffering do not impose inhumane or unrealistic limitations on the total damages the jury may properly award.
Babies present the most obvious proof of this principle. Newborns blinded at birth were at one time the tragic victims of an advance in medical care for premature infants. Cases growing out of such tragedies established precedents that clearly authorize millions of dollars in economic damages alone. In one representative case from the 1970’s, Spears v. Air Shields, Inc., a mother suing on behalf of her baby, who had been blinded by malpractice, recovered a jury verdict awarding economic damages that, in today’s dollars, added up to more than $1.7 million. Affirming the jury’s award, the appeals court stated that the evidence would actually have permitted the jury, had it chosen to do so, to award more than $5 million, again in 2005 dollars–counting only economic damages, which are not limited in any way by Proposition 2 or House Bill 4. Based on this case, and many other cases involving disabled children, it seems impossible that anyone interested in accuracy checked the false assertion that a baby blinded at birth through medical malpractice would be reduced to “a few hundred dollars a month” in damages. Similar claims are equally false as to each category of plaintiff cited in the article taking into account the evidence in each case.
The article’s unfounded and distorted damage limitation claims also fail to reflect the easily checked 30-year experience with caps in California, where the medical malpractice bar continues to prosper–despite both noneconomic damage caps and caps on legal fees ranging to 25 percent for recoveries above $100,000 to as low as 15 percent above $600,000. The article’s failure to critically evaluate either damage caps or fee limitations in other states is inexplicable. It is revealing as well to read the author’s praise for the plaintiff trial bar’s dubious public service of protecting the sanctity of their legal fees from California-scale limitations, while attempting to persuade the reader that any limits on the malpractice bar’s usual 40 percent fee structure could leave them unable “to practice their profession.”
Making a solid case based on economic damages is something any capable Texas lawyer can accomplish using nothing more exotic than long-settled Texas law. Contrary to the author’s belief that this would involve some kind of trick for “getting around” the caps, building evidence of economic damage is no more than routine trial work. Nor will the increased emphasis on economic damages defeat the critical benefit of reduced and stabilized medical malpractice insurance rates. Truly excessive verdicts, which typically result from pain and suffering awards, are eliminated by caps, and the loss of runaway verdict potential will also deter the filing of cases of doubtful liability, thereby at a minimum saving the high cost of investigating and defending marginal claims.
It is a pity that Texas Monthly did not look beyond the partisan bickering and propagandizing of its favored special interest group and take the opportunity to examine the core issues of medical malpractice. Like many in the reform movement, TLR does not regard caps as anything better than an arbitrary stopgap. In a reasonably functional traditional civil justice system, caps would not be necessary on any element of compensatory damages, because most verdicts would be reasonable and judges would feel free to cut back those that were not. Only punitive damage limits, which are constitutionally mandated, would be required. But in the meantime, no responsible society could ignore the unmistakable signs that the medical malpractice insurance system in Texas was on the brink of collapse. Under the circumstances, placing limits on noneconomic damages represented the only field-tested, effective solution available, so we accepted the program and worked hard in its support. An effective but arbitrary stopgap has eased the immediate problem but should not deter us from seeking better solutions.
8. The Malpractice Insurance Crisis and Physician Flight: A Myth Concocted by Greedy, Highly Profitable Malpractice Carriers? No. Among the most curious claims in the article is its contention that Texas faced no problems at all with medical malpractice insurance, a remarkable claim matched by the clearly erroneous assertion that “insurance reductions have been less than 1.5 percent since 2003, and the hoped-for return of doctors to underserved areas has not taken place.” Other than Texas Monthly, the only proponents of these delusional claims are the plaintiff trial lawyers and their well-funded academic apologists. Contrary to the claims in the article, it is not hard to demonstrate that, in the years before Proposition 12, the collapse of the medical insurance system was imminent if reforms were not enacted. In fact, fourteen of the seventeen medical underwriting companies that previously provided malpractice insurance in Texas had abandoned the state. Doctors staged a walkout in counties along the Texas-Mexico border, and the American Medical Association had tagged Texas as a “crisis state.” Only as a result of medical malpractice reform was Texas removed as a crisis state.
Furthermore, reports of deaths attributable to the absence of neurosurgeons in parts of Texas, as well as alarming marks of trouble such as emergency-room closings and declining numbers of physicians willing to practice in some litigation-prone areas of the state, would have introduced inconvenient facts that were at variance with the official story. We also detect no hint of the difficult public policy dialogue that eventually justified the trade-off of liability caps in Texas and elsewhere to salvage a deteriorating medical malpractice insurance situation. So far as the reader can discern, the Legislature passed and the Governor signed a bill having no justification other than some deeply concealed secret plan to enhance already bloated insurance company profits. Surely no responsible publication would have approached an issue of such public importance in such a manner.
Misstating the actual double-digit malpractice insurance rate reductions in the 24 months since medical liability reforms became effective is the kind of mistake that cannot be explained, nor is the article’s inexplicable denial of the easily verified fact that net growth in physician numbers has accelerated as compared to pre-reform trends. Also ignored is the simple, verifiable fact that numerous new medical malpractice insurers have returned since passage of medical liability reforms. These are not minor mistakes.
The story even promotes the absurd contention that medical malpractice cases have become a thing of the past. While a substantial decline was intended and has certainly occurred, especially after malpractice lawyers hustled to clear their inventory of unfiled cases before the effective date of the reforms, the courthouse doors are by no means “closed.” Medical malpractice cases continue to be filed–most recently at an average rate of 160 per month since Proposition 12 became part of the constitution–and will continue to increase if the experience of other states holds true in Texas.
The “closed courthouse” theme–a blanket claim not confined to medical malpractice litigation–seems almost comically at odds with realities none of us can avoid: freeway billboard pitches by trial lawyers, telephone book attorney pop-ups and foldouts, and–on television–a growing glut of daytime, late night and cable channel advertisements featuring legal hucksters like “The Tough Smart Lawyer” in Houston, “The Strong Arm” lawyer in Dallas, and a burgeoning crowd of other lawyer merchandisers eagerly promoting themselves in every television market. Can it be possible that someone forgot to get the word to these lawyers that ordinary people are out of luck and the courthouse doors closed?
9. The Texas Supreme Court: “Subject to the Influence of the Tort Reformers?” Wrong again, unless “influence” means following the law and filing persuasive briefs. The article opens its attack on the Court with the ludicrous claim that should a plaintiff go to court and “by some slim chance win and the defendant appeals, your odds of ultimately prevailing on appeal are 12 percent as of 2004.” This absurdity fails to mention that in 2004, according to numbers compiled by the Texas Office of Court Administration, approximately 61,000 personal injury/damage cases were filed in Texas trial courts but that only 791 petitions for review were filed in the Supreme Court. Of those 791, the Court agreed to hear only 82 cases. In other words, more than 99 percent of personal injury/damage cases filed in Texas never reach the Texas Supreme Court at all. The vast majority of filed cases are settled. Some are tried to a verdict but not appealed. All appeals proceed first to the Courts of Appeal, whose decisions are final in the vast majority of appealed cases. Viewed from odds at time of filing, 99 to one odds do not seem “paltry,” even in the unlikely event that the Supreme Court reversed every single judgment for the plaintiff that it heard.
The alleged 12 percent statistic in fact referred only to cases actually decided by the Supreme Court, not all cases decided by local trial courts. Leaving aside the article’s egregious misuse of the 12 percent claim, even that number was the product of heavy spin imparted by its source, “Court Watch.” This alleged “public-interests organization” uniformly advocates positions slavishly conforming to the views of its constituency, the plaintiff trial bar. Court Watch statistics resonate only among those who do not know a few simple questions to ask, such as: what is the total number of cases that file for review by the Court, and how many are actually reviewed and decided by the Supreme Court? The Court picks a small percentage of the cases seeking review, typically refusing to review about 90 percent. The acceptance of only 82 cases out of the 791 petitions for review means that 709 cases were left standing–which is the same as the lower court decision being affirmed. Thus, if only 12 percent of the 82 reviewed petitions were affirmed (as the article alleges based on a “trust me” claim by Court Watch that we cannot verify), the real total affirmance rate is not the “paltry” 12 percent, but a number many times larger than that because 90 percent were automatically affirmed when the Court refused to hear them in the first place.
Texas Monthly’s attack on the Supreme Court predictably repeats all of the story lines from the bitter trial lawyer jihad against conservative former Texas Supreme Court Justice Priscilla Owen. A distinguished jurist now on the U.S. Fifth Circuit Court of Appeals, Justice Owen endured years of unrelenting calumny from the TTLA, Court Watch and other plaintiff lawyer client organizations. Thus we read Texas Monthly echoing the claims that a key case involving proportionate responsibility, the Duenez case, supposedly grew out of some sinister connection to TLR: Justice Owen, the lead dissenter in the original 5-4 decision, was someone “whom TLR had helped elect.” In fact, TLR contributed to the election campaigns of four out of the five judges who voted in the majority in the Duenez case, as well as those of Justice Owen and her three colleagues who joined her four-vote dissent. Moreover, the claims about TLR’s role make little sense, since we made no appearance in the case until after the initial 5-4 decision was announced.
10. Flaws of Omission. The flaws in this story are not all affirmative. Remarkable omissions contribute almost as much to the article’s total imbalance as the inaccuracies and misrepresentations of what it does discuss. For example, is it plausible that a magazine seeking to publish a fair and reasonable story would devote thousands of words to medical malpractice complaints–without quoting a single doctor, nurse, or hospital or nursing home representative? Similarly, the failure to include the views of even one representative of the Texas Association for Patient Access, the lead organization in the push for medical malpractice legislation, does not inspire confidence that balance was among the magazine’s objectives.
The magazine similarly fails to quote a single builder when discussing the 2003 law that created a state agency called the Texas Residential Construction Commission. Although the author admits that “TLR did not endorse or lobby for this bill,” it devotes two pages in the magazine to a home buyer’s complaints, particularly those directed at the mandatory arbitration clause he signed when he bought the house. After admitting that the home builder’s bill didn’t even apply to her example, however, the author asserts that “homeowners have seen their access to the courthouse curtailed” by mandatory arbitration, presumably because of “the tort reformers.” In fact, the enforcement of binding arbitration agreements is mandated by an eighty year old federal law, that is preemptive and binding on all states, enacted by Congress in 1925.
By devoting most of its ink to medical malpractice reform, the article manages to skip past most of the leading reform achievements supported by TLR since 1994. The most incredible is its omission of the landmark Texas asbestos-silica litigation reform of 2005, which was debated before the Legislature and enacted in plenty of time for reference in the article. Asbestos mass litigation abuse, and its successor, mass tort silica litigation, present the most egregious lawsuit abuses in Texas and most of the United States. So bad have the abuses in this area become that in July, U.S. District Judge Janis Jack of Corpus Christi excoriated the asbestos-silicosis lawyers appearing before her in a national combined silicosis proceeding, holding that “on a number of different levels, the claims in this [litigation] defy all medical knowledge and logic.” In her 249-page opinion, Judge Jack held that “these diagnoses were about litigation rather than health care,” adding that “it is apparent that truth and justice had very little to do with these diagnoses — otherwise more effort would have been devoted to ensuring they were accurate. Instead … these diagnoses were manufactured for money.” The lawyers before Judge Jack learned their craft from asbestos litigation, but this time the attempt to replicate the practices that led to asbestos litigation abuse may have been cut off before it launched another wave of mass-tort driven bankruptcies.
An informed reader would also search in vain for mention of the landmark class action reforms of 2003, or for a reasoned discussion of such critical elements of TLR’s reform agenda as those relating to punitive damages, venue, offer of settlement, deceptive trade practice claims, appellate bonds, multidistrict litigation, and limitation on the kind of abuses that led to the imprisonment of former Attorney General Dan Morales. These are barely mentioned in passing or omitted altogether. Other reforms ignored include enhanced schoolteacher and volunteer protections and strict limitations on judicial campaign finance. Finally, the article speaks only of personal injury cases, ignoring the potentially more significant application to business tort litigation. From the shock of the $7 billion Pennzoil v. Texaco case in 1986 through the tobacco litigation legal fee bonanza in 1998, business cases have burgeoned in importance. Again, a major dimension of the reform movement failed to earn even a passing reference.
|C.||“Spin management” with a vengeance: the article dispenses with any pretense of balance, factual accuracy or fairness.|
A few examples should suffice to show that the article failed to make a responsible attempt to verify its claims. For example, TLR is accused of “investing around $1 million” to defeat Supreme Court candidate Elizabeth Ray. In fact, TLR PAC contributed $15,500 to her opponent, as our easily checked public filings disclose. No fact checker called TLR or its PAC to confirm this serious claim, an allegation all the more remarkable because campaign finance laws prohibit giving more than $25,000 in a statewide judicial race–a law TLR helped pass in 1995. A comparably immense misstatement was advanced as to the campaigns of Governor George Bush. The article asserts that “by the time [Bush] was reelected, in 1998, TLR and similar groups had given more than $4 million to his two campaigns.” In fact, TLR PAC gave a total of $25,000 in these campaigns. Again, our public filings were obviously not consulted, nor did we hear from a Texas Monthly researcher to verify these claims.
Lack of balance is another dominant thread throughout the article. For example, when discussing the founders of TLR, the writer refers to them as “wealthy,” presumably to help explain why they don’t care what happens to ordinary people. Strangely, however, when discussing plaintiff lawyers, the author seemingly forgets to discuss their personal wealth, even though one of the plaintiff lawyers quoted is likely the single richest person interviewed for the article. In the same vein, the article impugns the motives of TLR’s founders by concocting the unwarranted claim that the founders were motivated not by a desire to improve the civil justice system, but because their “wealth has been accumulated in businesses – from construction to alcohol – profoundly threatened by lawsuits.” Although the author unhesitatingly speculates to arrive at the claim that a “profound threat” supposedly drives TLR’s volunteer founders, she turns a blind eye to the manifest, non-speculative truth that the law practice of the plaintiff trial lawyers is not merely “threatened:” their pocketbooks are immediately and directly impacted by almost every reform of the litigation system. Therefore, the very plaintiff lawyer group that provided Texas Monthly the “stuff” for its article has the strongest imaginable self-interest in opposing civil justice reform. Treating its spokesmen as the selfless champions of the downtrodden seems questionable at best.
The blend of factual errors and lack of balance leads the writer into breaches of logic that are occasionally startling. For example, it paints the TLR leaders as wealthy, callous businessmen motivated by fear of “profound” litigation risks, but then zeroes in on the main focus of the article–the $250,000 cap on non-economic damages in medical liability cases. Not one of the TLR leaders named in the article is a doctor, hospital investor, or nursing home operator, and none stands to be enriched or protected by non-economic damage caps in healthcare liability cases. Similarly, it seems strange that the magazine’s legislative reporters regularly covered the state capitol throughout the 2003 session, yet the article reflects no awareness that the healthcare professions and businesses formed their own group, Texas Association for Patient Access (TAPA), to represent them in the Legislature. TAPA formulated the medical liability provisions of the 2003 medical liability reforms, including the caps on non-economic damages; its lawyers and lobbyists worked with bill sponsors and members of the Legislature on those provisions; and TAPA led the campaign to pass Proposition 12 in the constitutional amendment election. Although we strongly supported and worked hard to assist in the passage of these healthcare reforms, TLR had relatively little to do with the legislative process on the medical liability provisions of HB 4 and had absolutely no decision-making authority on those provisions. Those facts could have been easily verified by talking to legislative leaders and the bill sponsors.
|D.||The article ignores the authentic story of a movement with deep Texas roots while defaming and dismissing the labors of the distinguished legislators who made reform a reality.|
There was a real story to be told about TLR, but one does not find it here. Texas Monthly weighed the actions of a home-grown volunteer group having no motive of personal gain against the professionally honed claims of the most aggressive, partisan, opulently financed and pocketbook-driven special interest group in Texas. That the magazine uncritically swallowed and published the plaintiff bar’s propaganda marks a low point in Texas journalism.
The true merits of the 2003 reforms reviled in this article were described on the floor of the Texas Senate by Senator Bill Ratliff, a veteran and respected lawmaker recognized by Texas Monthly as one of its Ten Best legislators for six straight legislative sessions, including the HB4 session of 2003. Senator Ratliff, unlike Texas Monthly, did not believe that the legislature of which he was a key leader was “slavishly devoted” to TLR, or “supine” in dealing with its proposals. There is no indication that Senator Ratliff considered himself to be working to establish a hellish regime in which courts would be “closed” by the 2003 reforms that he shaped, rewrote and led through Senate passage. Certainly he never believed he was establishing a nightmare world “remade in [TLR’s] image, one in which there is no recourse for wrongdoing, one in which the powerful simply get their way.” Here is what Senator Ratliff said on the day of the reform bill’s passage:
It’s amazing to me how we can have 400 people come and testify on this bill and have such different visions of… what is in the best interest of the public. And all we can do is make the best call that we know how…. I… have concern about the people who might not have access to medical care if we don’t do something. But it goes further than that. I have concern about whether or not we will be able to create jobs in the State of Texas if we don’t have a fair and balanced tort system, not just in medical, but in the whole tort system. So, I would only say… that we made the best call we could. I guess history will tell us whether we did a decent job of it or not.
When that history is written, it seems unlikely that the claims published by this magazine will find a place among the authentic documents that pass judgment on the legislation Senator Ratliff, and the entire Legislature, labored so diligently to perfect.