I have three things to say about this.
Still not Greg Abbott
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.”
Abbott said the reforms he had backed and helped cement in court rulings had been necessary to curb a rash of frivolous lawsuits. But he said the changes would not affect people like him.
“If there were someone jogging today, got hit by a tree today, suffered the same kind of accident today, they would have access to the very same remedies I had access to,” he said.
“Our legal system was abused in this state,” he continued. “There were many invalid claims that were filed in court, that clogged up the courts, that either denied or delayed access for people who had valid claims.”
Tort laws have changed drastically since Abbott’s accident, adding hurdles for people who sue for personal injuries and making it harder for them to win large sums. But there is disagreement about whether Abbott could receive a similar settlement today.
[…]
Charles M. Silver, a professor at the University of Texas at Austin School of Law and co-author of the study that disputed claims made by proponents of medical malpractice caps, said changes in personal injury law and a “pro-defendant” posture in the judicial branch made such a large financial settlement substantially less likely.
“Today that would be an extraordinarily high recovery,” Silver said. “It would be harder to get that type of award today.”
1. I had previously suggested that Abbott must have had health insurance when he suffered his injury. Apparently I was wrong about that. But I was still right that he never faced any dire financial problems as a result of his injury.
2. Be that as it may, the main point is still that Abbott utterly lacks empathy for anyone unfortunate enough to be in similar circumstances today, or anytime in at least the past two decades. He has done nothing to make the circumstances of anyone in need of access to health care better, and through his repeated lawsuits against the Affordable Care Act has actively sought to prevent anyone else from making their circumstances better.
3. Abbott’s claim that anyone who suffered a similar injury today “would have access to the very same remedies I had access to” strikes me as unlikely in the extreme. It also strikes me as a fact that might be checkable, at least to some extent, though I don’t expect any journalist to try to follow up on that. But seriously, does anyone think in the legal climate we have in Texas today, one that Greg Abbott helped shape as a Supreme Court justice in the 90s, that such an outcome is even remotely likely, especially for someone who isn’t already in a position of influence or with access to ample resources? Attorney Wade Barrow doesn’t think so.
Since Abbott’s settlement, Texans for Lawsuit Reform, one of his most loyal and robust contributors, has been on a perpetual mission to eliminate the rights of catastrophically injured Texans.
The list of limitations that Texans for Lawsuit Reform has passed since 1986, with the help of politicians like Abbott, that would directly limit his claim if he were to make it today include limitations on medical care in the past, lost wages and punitive damages. Abbott’s settlement document specifically references punitive damages.
However, the much graver threat to Abbott’s case today is the Texas Supreme Court’s continued insistence on substituting its judgment for that of juries. In fact, since Abbott’s settlement, the Texas Supreme Court has repeatedly held that “naturally occurring conditions” do not create an unreasonable risk of harm.
Based on this legal precedent, cases similar to Abbott’s are thrown out of court without a jury hearing them. While it is only known generally that a tree fell on Abbott, it is likely that the Texas Supreme Court would dismiss such a case.
If the Court ruled in that manner, Abbott or anyone with the same type of case would collect nothing today.
Catastrophically injured Texans now often find themselves without the legal remedies Abbott had at the time of his settlement, and they are forced to go on government assistance at taxpayer expense because the liable party cannot be held accountable for negligent acts.
It is impossible to reconcile Abbott’s longstanding relationship with Texans for Lawsuit Reform and his own personal experience. Either Abbott made what he would now have to concede are likely “frivolous” claims for his personal injury settlement, or he is complicit in supporting legislation and court opinions that he knows to be unjust based on his own life experience.
Texas Watch recently documented just how much the tort “reform” amendment of 2003 has limited access to the courts, and before that documented how often the Supreme Court throws out jury awards. Even without detailed fact checking, Abbott’s claim is farfetched on its face at best. More from Texas Watch here.
I’ve been a lawyer for over 30 years. During that time the remedies available to injured people have been systematically wiped away, all under the banner of the big lie that the courthouse is supposedly filled with “frivolous lawsuits.” First off, really big recoveries are news specifically because they are rare under any circumstances – the “man bites dog” rule. Secondly, even those that have been flogged and mocked a) have been described using a VERY cherry picked version of the facts, and b) generally have the really big jury awards reduced.
Is there such a thing as a frivolous lawsuit? Of course. Any system has its abuses. But what we have now is a situation where people who have very real and very significant injuries foisted upon them essentially have no recourse because is it is hard to prosecute such a case to begin with, and even more so when the economics of doing so are so stacked against the claimant. A shining example is medical malpractice, where certain recoveries were capped at what was a fairly low amount ten years ago, and which hasn’t kept up with inflation. In addition, you have to spend a lot of time and money to thoroughly document the claim before the suit is even filed, including expert reports…the problem being, more facts usually get uncovered once the lawsuit is in progress. Supposedly, this was going to be great, because doctors’ insurance premiums would go down, and we would have a flood of medical professionals coming in to practice without having to look over their shoulders in fear of some guy in a suit with a slit for a dorsal fin. The reality is, premiums haven’t gone done, the rainbows and balloons and ice cream and unicorns never showed up, really, really big claims still get prosecuted, but people whose damages aren’t made up of lost income get the shaft. Oh, and the crazies are still around out on the fringes, because there’s not a whole lot anyone can do to fix crazy.
For the record, my practice rarely involves any type of personal injury case; when it does, I am almost always representing a company that is somewhere in the food chain on the defense side – though generally not the main target.
I just don’t like stacked decks.