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tort reform

Another unintended consequence of tort “reform”

From Lisa Falkenberg:

At every turn in her ordeal, Laura has felt irrelevant.

The Houston mother of two says she was raped in her hospital bed by a doctor who she claims checked his phone afterward while she cried. She reported the rape to nurses who responded with cold skepticism. She had to wait nearly two years for police to collect the alleged attacker’s DNA and make an arrest.

And now, there’s this: the physician charged with assaulting her at Ben Taub hospital in November 2013, Dr. Shafeeq Sheikh, may get off scot-free in civil court.

And Texas law may entitle her to only modest compensation from Sheikh’s employer at the time of the rape, the prestigious Baylor College of Medicine.

Sheikh continued at Baylor for seven months following the incident and was then hired by Houston Methodist. A Baylor spokeswoman, citing pending litigation, has refused to allow interviews with Baylor officials or to answer questions.

The Texas Medical Board suspended Sheikh’s license following his arrest, and he has been fired from Methodist. His attorney says Sheikh looks forward to proving his innocence in court.

On Oct. 19, Laura’s attorney sued Sheikh, Baylor, Ben Taub and Harris Health, alleging, among other things, negligence.

Baylor’s lawyers have submitted to the court a proposed order to dismiss Sheikh from the case, as “mandated” by law. Baylor’s attorney, Jeff McClure, declined comment.

The law he cited, in the “tort claims” chapter of the Civil Practice and Remedies Code, says that if a governmental unit and its employee are sued, the employee shall “immediately” be dismissed.

How is a doctor at a private medical college considered a government employee?

Baylor doctors staff Ben Taub, which is a public hospital owned by Harris County.

The doctor isn’t the only one who can deploy the “government unit” shield. Baylor lawyers have successfully argued that the college itself can be construed as a government entity and is entitled to the same protections a county institution would enjoy.

In Texas, a limited government liability state, those protections are great. Baylor can argue it is immune to the claim altogether. Even if Laura’s lawyers are successful in challenging that immunity, and she is granted an award, the most a municipality can be forced to pay is $100,000.

“You can get about $300,000 if you spill coffee in your lap at McDonald’s,” says her lawyer, Mark Weycer. “But this poor lady gets raped at Ben Taub Hospital and on her best day at the courthouse, she gets $100,000.”


How can this be? The 2003 tort reforms were flawed in many ways, but did lawmakers really intend to go so far as to protect doctors who rape patients?

Absolutely not, said former state Rep. Joe Nixon, a Houston Republican who sponsored the legislation in the House. He said he was “flabbergasted” and “stunned” to hear that the Texas Supreme Court would interpret his bill to mean assault is medical malpractice.

“Any criminal activity by any medical personnel is not covered by this bill, under any circumstances,” he said.

Nixon, an attorney, cautioned in an interview Friday that he doesn’t handle medical malpractice cases, he wasn’t familiar with Laura’s case and he doesn’t comment on pending litigation. But he pushed back on the notion that his bill is responsible for the hurdles Laura faces in her civil action.

That includes the provision that allows Sheikh and Baylor to claim government protections. Perdue, the personal injury lawyer not connected to her case, said a slight change in Nixon’s 2003 bill allowed medical providers to be considered public servants.

Nixon denied that change, but when presented with the language, he argued that a doctor who rapes a patient isn’t a public servant because he’s acting outside the “course and scope” of duty.

See here and here for Falkenberg’s prior columns on this topic. It’s far more likely to me that the legislators who crafted our awful tort “reform” law didn’t give the matter much thought. I’m sure whichever lobbyists that discussed the medical-providers-as-public-servants exception with then-Rep. Nixon had perfectly reasonable-sounding justifications for it that a dedicated lackey to corporate interests like Nixon was only too happy to sign off on. And let’s be clear, it would be 100% consistent for the Supreme Court to read the law in this fashion, given how in the pocket of corporate interests they are as well. But look, there’s an easy way to fix this, and that’s for the 2017 Lege to pass a bill (*) clarifying the intent of the 2003 tort “reform” law to explicitly state that doctors like these are not “public servants” and thus are not covered by tort “reform”. Bitter partisan that I am, I think the odds of that happening are slim to none, but I’ll be happy to be proven wrong. And as long as I’m in partisan mode, running on a promise to pass a law to remove this protection from rapists would be an excellent thing for Democratic candidates up and down the ballot to run on. Let’s get Greg Abbott and Dan Patrick on the record on this, shall we?In the meantime, I hope Laura and her attorney can find a way to get justice from this awful situation, whatever the Lege and the Supreme Court do.

(*) Given that the tort “reform” law was enshrined in the Constitution, we may need another amendment to achieve this. I’m unclear on this point, so if any of the legislative experts in my audience care to weigh in, I’d appreciate it. My point about the partisan politics of this remain regardless.

“Environmental tort reform”

Oh, hell no.

After failing in their attempt to limit cities and counties’ ability to take industrial polluters to court, some Houston businesses and statewide lobbyists now want to limit how much local governments can collect in penalties, a sort of environmental tort reform effort aimed squarely at a Harris County Attorney’s office they say is seeking high-dollar payouts at the expense of cleanup efforts.

At a legislative committee hearing earlier this year, the powerful Texas Association of Business and attorneys for Waste Management Inc. and a wealthy Houston family being sued by Harris County told lawmakers that the County Attorney’s office has started seeking outrageous penalties unrelated to environmental clean-up costs from entities already cooperating with remediation requirements imposed by the state or federal government. If allowed to continue, they told members of the House Committee on Judiciary and Civil Jurisprudence, the lawsuits could have a “chilling effect” on development and erode property values.

“As a practicing lawyer who advises companies as to what liabilities they may face, like becoming involved with a contaminated property, I have to advise them – based on some of the recent cases – that there is a possibility, as remote as it might be … that you could be penalized for coming on to that site and seeking redevelopment because it is not precluded by the laws as they exist now,” said John Riley, a lawyer for Houston-based Waste Management.

The mega-company and two of its affiliates are facing nearly $2 billion in fines in a lawsuit brought by the county – set to go to trial next month – involving one of the state’s biggest pollution headaches: two industrial waste pits that leached paper mill sludge containing cancer-causing dioxins into the San Jacinto River for almost half a century.

McGinnes Industrial Maintenance Corp. owned and operated the pits – now a federal Superfund site – in the 1960s, filling a 20-acre tract with waste from a now-closed paper mill near the Washburn Tunnel. The company later became part of Houston-based Waste Management.

The County Attorney’s office sued Waste Management, and International Paper Co., in 2011, asking the companies be fined as much as the law allows – $25,000 a day – all the way back to the site’s 1965 opening.

Last year, the companies supported legislation that would have diminished the power Texas cities and counties have had for decades to file such environmental enforcement lawsuits. Two bills that died in a House committee after being fought by Harris County lobbyists would have required the Texas attorney general to settle all such litigation filed by local governments and barred them from hiring outside lawyers on a contingency fee basis.


At the May hearing, Harris County officials told committee members they were “not sure what the problem is,” emphasizing that the TCEQ typically is listed as a “necessary and indispensable party” in these cases and that they must be approved by Commissioners Court.

“These cases are not filed willy-nilly,” First Assistant County Attorney Robert Soard said.

Soard and other officials who testified, including a TCEQ employee, said such lawsuits are reserved only for the most egregious cases. The county, they said, simply is attempting to recuperate clean-up, legal and other costs associated with contaminated sites and has every legal right to do so.

“Every time we file a case against a large company now we now expect to see them run to Commissioners Court and the press screaming about how unfair we are,” said Rock Owens, who heads the County Attorney’s four-lawyer environmental division. “This never used to happen and now it’s par for the course. Maybe this is an indication that we are finally hitting where it hurts, even if it’s only a little ding.”

Hey, you know what these powerful business interests and wealthy families can do to stop getting sued over these ginormous environmental messes they’re responsible for? They can clean them up in a timely fashion, and they can take all necessary steps to ensure that they don’t create any more such toxic hazards. Until then, as far as I’m concerned, they can STFU.

More on the Abbott-Duntsch connection

The Observer advances the ball.

Dr. Christopher Duntsch

How immune are hospitals? Under the current law, for Baylor to be liable for Duntsch’s mistakes, the plaintiffs have to prove that hospital administrators let him operate because they specifically intended to harm patients.

Soon after the three plaintiffs sued, Abbott’s office announced that it would be jumping in to defend the statute that shielded Baylor. In statements at the time, the attorney general’s office was clear: Abbott wasn’t defending Baylor or Duntsch. He was simply defending state law.

Earlier this week, Wayne Slater at the Dallas Morning News suggested that Abbott may have had other incentives to intervene. In June 2013 and January 2014 Abbott received two large donations to his gubernatorial campaign—$100,000 and $250,000 respectively—from one Drayton McLane, a Temple transportation exec and Republican who is also the chairman of the the board of trustees for Baylor Scott & White, the company that owns the Baylor hospital system.

The timing is a little suspicious. The $100,000 donation came the day after the Texas Medical Board suspended Duntsch’s license, ending an 18-month surgical career that had left two dead and many more paralyzed or in chronic pain. The $250,000 donation came the week after the second of the three lawsuits.

McLane has given Abbott money before, but it’s generally been much less; the most he had given in the past, according to the campaign filings the Morning News references, was $25,000.

See here for prior posts on Dr. Duntsch, and here for the DMN story on which the Observer piece is based. By the way, I can only presume that Observer author Saul Eblein is not a baseball fan or else he might have recognized Drayton McLane as the former owner of the Houston Astros. McLane, who gave more to Abbott in that one fell swoop than he had to Rick Perry in a dozen years, insists there was nothing fishy about the donation, its size, its timing, or Abbott’s subsequent defense of Duntsch. And we should believe him because that’s how people like Drayton McLane got to be where they are in the world today, by tossing their money around indiscriminately without even a passing thought to the possible return on investment. I’m sure Greg Abbott won’t treat him or the things he values any differently than he’d treat any other rich Republican donor. They’re all equals in his eyes.

More on Abbott and Duntsch

The Observer follows up its earlier reporting on disastrous doctor Christopher Duntsch and the efforts of Greg Abbott to ensure he is never held accountable for his actions.

Dr. Christopher Duntsch

When I wrote about Duntsch last August, there were quite a few unanswered questions. Chief among them: Why did he do it? Was he a sociopath? A drug addict? And with his record of patients dying or ending up paralyzed, how was he allowed to keep practicing?

Thanks to the new litigation, we have at least a few answers. According to the lawsuits, Duntsch had drug problems that Baylor should have known about. The lawsuits allege a shocking list of behaviors that, if true, should have been huge red flags for Baylor. They contend he was in treatment for drug abuse during his residency at the University of Tennessee. That he was abusing prescription drugs and skipped out on five drug tests that Baylor Plano asked him to take, without any consequences. That he kept a bottle of vodka under his desk; that a bag of white powder showed up in his private bathroom. That he took off for Las Vegas immediately after a surgery, leaving his patient unattended. But despite this, and despite the numerous warnings about Duntsch from doctors and nurses who had worked with him, Baylor continued to allow Duntsch to operate, and even publicized his practice and encouraged doctors like Morguloff’s to refer their patients to him.

According to the lawsuits, the reason for this was simple: The hospital had advanced Duntsch $600,000 to move from Tennessee to Dallas. “Baylor had spent a lot of money on Duntsch,” attorney Jim Girards wrote in Passmore’s complaint, “and they wanted it back.” If he didn’t work, they didn’t get paid.

But in Texas, it is extremely difficult to use the courts to hold a hospital accountable for allowing a dangerous doctor to operate, thanks to a decade-long campaign, aided by the Texas Supreme Court and the Texas Legislature. Under current law, Baylor Plano can make money off a high-dollar surgeon like Duntsch without being financially accountable for anything that he does.

The four Duntsch patients want to change that. Their only recourse is to challenge the constitutionality of the laws shielding Baylor Plano. If they win, hospitals could once again be responsible for the actions of the doctors they allow to practice. But they’re confronting powerful opponents, not just a lucrative hospital. Texas Attorney General Greg Abbott, who’s made limiting lawsuits a feature of his political career, is facing off against them in court. Barring an upset in court, it’s likely that the hospitals who allowed Duntsch to kill and maim patients will never pay a cent in damages.


Where does this leave Dr. Duntsch’s victims? With little choice but to challenge the constitutionality of the malice law upon which the hospital immunity rests. The legal challenge in the Baylor case is the first constitutional challenge since tort reform to the credentialing laws, the first attempt to open hospitals back up to liability for the doctors they allow to practice. But Barry Morguloff and the three other plaintiffs are facing a powerful adversary: Texas Attorney General Greg Abbott, who is the Republican nominee for governor.

Tort reform has been a major feature of Abbott’s political career. In 2002, when Abbott was running for attorney general against Kirk Watson, he made tort reform a central plank of his campaign. In his campaign literature, he referred to Watson as a “plaintiff personal injury trial lawyer,” which is to say, the kind of lawyer people love to hate.

Abbott was well-supported in that campaign, and in all subsequent ones, by groups pushing lawsuit reform. According to Texans for Public Justice, between 1997 and 2014 Abbott took in $2.3 million in contributions from doctors, hospitals and the two PACs set up to push tort reform. About $400,000 came directly from hospitals.

Abbott was well-supported in that campaign, and in all subsequent ones, by groups pushing lawsuit reform. According to Texans for Public Justice, between 1997 and 2014 Abbott took in $2.3 million in contributions from doctors, hospitals and the two PACs set up to push tort reform. About $400,000 came directly from hospitals.

If anything, those numbers understate how much he’s brought in from tort reform interests. In his gubernatorial race, Abbott has brought in $2.8 million from what Texans for Public Justice calls “tort tycoons,” the 34 super-rich Texans who also gave heavily to pro-tort reform groups like Texans for Lawsuit Reform PAC. Since his race for Attorney General in 2001, they’ve given Abbott $10 million. All told, about one out of every five dollars he’s raised in his time in office has come from people and political groups staunchly imposed to strengthening the tort laws.

See here and here for some background, and be sure to read the whole story. It’s not an exaggeration to say that if Abbott wins again on this, there will be basically no way to hold incompetent doctors and the hospitals that employ them accountable for any damage they cause.

Retail medical clinics

I for one think they’re a good idea.

Here’s a prescription for pediatricians fighting to keep easy-to-treat, well-paying patients: Expand after-hours and weekend services to serve desperate parents in search of quick remedies for their kids’ late-night sore throats and upset tummies. Otherwise, parents will continue choosing the closest CVS, Walgreens or H-E-B clinic.

With the store-based medical clinic business projected to double between 2012 and 2015, analysts and doctors say pediatricians must change their business model to fit parents’ needs. Otherwise, they risk losing their relatively lucrative patients and relying more on chronically ill ones who take longer to diagnose and treat and thus reduce the number of people that doctors can see in a day.

“Well-baby cases help compensate for a Medicaid enrollee who takes half an hour,” said Devon Herrick, senior fellow at the Dallas-based National Center for Policy Analysis. He added that the speed and convenience of retail clinics attract many of the better-paying cases, and doctors are working to keep from losing them.

Despite clear demand in the market, doctors have for years targeted retail clinics for criticism. They argue that doctors best understand their patients’ needs and provide the best care. Most recently, the American Academy of Pediatrics urged parents to avoid store-based health clinics, saying they don’t provide the high-quality care children need.

However, the nation’s leading professional organizations for doctors repeatedly have said there aren’t enough doctors to treat everyone now and won’t be in years to come. The American Academy of Family Physicians projects a shortage of 40,000 doctors nationwide by 2020. Texas already has a ratio of about 165 doctors for every 100,000 residents, which falls below the national average of 220 physicians for every 100,000 people.

“It’s about competition,” said Dr. Kaveh Safavi, global managing director of Accenture health business, adding that retailers came up with the idea for “embedded clinics” because people needed them.

He described pediatricians’ concerns with retail clinics as a “short-term skirmish” that doctors have been waging for years.


Texas Children’s Hospital’s chief medical officer, Dr. Stan Spinner, recently posted in a hospital website blog that retail clinics employ providers who lack proper training and experience treating children.

“As a pediatrician for more than 25 years, I’ve seen firsthand the inadequate care these clinics can provide,” Spinner wrote. “Numerous patients have come into our Texas Children’s pediatrics practices after visiting a retail-based clinic the night before questioning the medication or dosage they had received.”

When asked to elaborate later, Spinner said he didn’t know how many such incidents had occurred. He said parents waste time and resources at retail clinics and then follow up with pediatricians to ensure children received the correct treatment.

“(Pediatricians) should have seen them the very first time,” Spinner said, adding that some pediatricians are expanding their office hours and working weekends to accommodate patients.

All due respect, Doc, but there are bad physicians out there, too. I’d take your complaint more seriously if we had a more effective means of policing them, but between tort “reform” and the impotence of the Texas Medical Board, there ain’t much that can be done. Be that as it may, my own anecdotal evidence favors the retail clinics. A few years back, what I had figured was an insect bite on my left foot had turned into something painful and alarmingly swelled on a Saturday morning. With my alternatives being a visit to the emergency room and a fervent wish that it wouldn’t get any worse by Monday, I visited a clinic at the HEB on Bunker Hill. They prescribed some meds that did the trick, and by the time I did see my doctor on Monday, my foot looked mostly normal again, and he agreed with their diagnosis. Faced with the same situation again, I’d have no hesitation to pay them another visit.

One more thing:

Retail clinics revolve around a high-volume, low-complexity business model. Services usually range from $59 to $99. They include convenient and basic care – physicals, disease monitoring, vaccinations, and illness and infection diagnosis and treatment. The clinics usually employ nurse practitioners and physician assistants, who are less expensive than doctors.


Retail clinics will hold nearly 11 million visits annually, saving about $800 million in unnecessary emergency care costs, Accenture said.

One of the dirty secrets of health care and the amount that we spend on it is that controlling our health care costs necessarily means paying less money to doctors. It’s more complex than that, of course – prescription drug costs and a lack of transparency in pricing are other big factors – but in the end, less money being spent by consumers means less money being paid to providers. Given that there’s a shortage of general practice physicians anyway, more retail clinics and a greater use of advanced practice nurses are both modest steps in the right direction. Doctors are going to have to learn to live with that.

Abbott sides with medical malpractice


Dr. Christopher Duntsch

The Baylor Regional Medical Center at Plano, accused of protecting a neurosurgeon who allegedly killed and maimed patients, gained an ally this week in Texas Attorney General Greg Abbott.

Abbott filed motions to intervene in three separate federal court suits brought against Baylor Plano by former patients of Dr. Christopher Duntsch. They have alleged that Baylor knew Duntsch was a dangerous physician but did not stop him from performing back surgery.

The suits challenge the constitutionality of a state law that requires the plaintiffs to prove that Baylor acted with actual intent to harm patients. Abbott seeks court permission to defend the statute.

If Abbott’s position is upheld, the patients would have a much harder time winning a suit against Baylor. One of the plaintiffs’ attorneys, James Girards of Dallas, criticized the attorney general’s motion.

“I think it’s absolutely insane that he has chosen to defend the hospital that enabled this … sociopathic neurosurgeon to wreak havoc on its patients,” Girards said. “I hate to think he’s doing it to pander to the medical lobby.”

Kay Van Wey, a Dallas lawyer who filed two of the suits, also attacked the attorney general. “Mr. Abbott is making it clear that his priority is to protect hospitals, not the patients they harm,” she said.

Wondering where you’ve heard the name Christopher Duntsch before? Let me quote from this Observer story, which I blogged about last October.

In late 2010, Dr. Christopher Duntsch came to Dallas to start a neurosurgery practice. By the time the Texas Medical Board revoked his license in June 2013, Duntsch had left two patients dead and four paralyzed in a series of botched surgeries.

Physicians who complained about Duntsch to the Texas Medical Board and to the hospitals he worked at described his practice in superlative terms. They used phrases like “the worst surgeon I’ve ever seen.” One doctor I spoke with, brought in to repair one of Duntsch’s spinal fusion cases, remarked that it seemed Duntsch had learned everything perfectly just so he could do the opposite. Another doctor compared Duntsch to Hannibal Lecter three times in eight minutes.

When the Medical Board suspended Duntsch’s license, the agency’s spokespeople too seemed shocked.

“It’s a completely egregious case,” Leigh Hopper, then head of communications for the Texas Medical Board, told The Dallas Morning News in June. “We’ve seen neurosurgeons get in trouble but not one such as this, in terms of the number of medical errors in such a short time.”

But the real tragedy of the Christopher Duntsch story is how preventable it was. Over the course of 2012 and 2013, even as the Texas Medical Board and the hospitals he worked with received repeated complaints from a half-dozen doctors and lawyers begging them to take action, Duntsch continued to practice medicine. Doctors brought in to clean up his surgeries decried his “surgical misadventures,” according to hospital records. His mistakes were obvious and well-documented. And still it took the Texas Medical Board more than a year to stop Duntsch—a year in which he kept bringing into the operating room patients who ended up seriously injured or dead.

In Duntsch’s case, we see the weakness of Texas’ unregulated system of health care, a system built to protect doctors and hospitals. And a system in which there’s no way to know for sure if your doctor is dangerous.

I’d call this a case of putting politics above people, and it’s completely in character for Greg Abbott. I think he just doesn’t believe anyone should be able to sue for medical malpractice. You can call it what you want – Texas Watch calls it “defending the indefensible” – I’m sure the Wendy Davis campaign will have a name for it as well.

Another poster child for tort “reform”

The Observer asks how well you know your doctor.

In late 2010, Dr. Christopher Duntsch came to Dallas to start a neurosurgery practice. By the time the Texas Medical Board revoked his license in June 2013, Duntsch had left two patients dead and four paralyzed in a series of botched surgeries.

Physicians who complained about Duntsch to the Texas Medical Board and to the hospitals he worked at described his practice in superlative terms. They used phrases like “the worst surgeon I’ve ever seen.” One doctor I spoke with, brought in to repair one of Duntsch’s spinal fusion cases, remarked that it seemed Duntsch had learned everything perfectly just so he could do the opposite. Another doctor compared Duntsch to Hannibal Lecter three times in eight minutes.

When the Medical Board suspended Duntsch’s license, the agency’s spokespeople too seemed shocked.

“It’s a completely egregious case,” Leigh Hopper, then head of communications for the Texas Medical Board, told The Dallas Morning News in June. “We’ve seen neurosurgeons get in trouble but not one such as this, in terms of the number of medical errors in such a short time.”

But the real tragedy of the Christopher Duntsch story is how preventable it was. Over the course of 2012 and 2013, even as the Texas Medical Board and the hospitals he worked with received repeated complaints from a half-dozen doctors and lawyers begging them to take action, Duntsch continued to practice medicine. Doctors brought in to clean up his surgeries decried his “surgical misadventures,” according to hospital records. His mistakes were obvious and well-documented. And still it took the Texas Medical Board more than a year to stop Duntsch—a year in which he kept bringing into the operating room patients who ended up seriously injured or dead.

In Duntsch’s case, we see the weakness of Texas’ unregulated system of health care, a system built to protect doctors and hospitals. And a system in which there’s no way to know for sure if your doctor is dangerous.

Reading this reminded me of another poster boy for tort “reform”, Doctor Eric Scheffey, who plowed a path of death and mayhem a few years ago before finally being stopped. These guys are obviously atypical, but as the Observer story points out, the system we have today has almost no power to do anything about them. The Texas Medical Board’s authority is very limited. Hospitals are not required to disclose the reasons why a particular doctor is no longer employed there, so bad doctors’ bad acts don’t follow them from one place to another. And of course, thanks to our draconian medical malpractice lawsuit limits, the courts no longer serve as a way to get the bad apples out of the barrel. The vast majority of doctors are competent and conscientious, so for most of us it’s not a problem. But for a non-trivial number of unfortunate people – the Observer story documents a few of them – it’s a matter of life and death. And our famously “pro-life” legislature could not care less.

More on Abbott and his lawsuit settlement

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.

How I would campaign against Greg Abbott

If you’ve been following Greg Abbott’s gubernatorial campaign kickoff, you’ve probably noticed that in addition to being light on substance, the Attorney General has been hitting his personal story hard, in an attempt to portray him as some kind of empathetic figure.

How Greg Abbott views the process, without the wildebeest stampede

Who needs policies when you have destiny?

Over nearly two decades of public appearances as a political figure, Greg Abbott has not shied from noting the obvious: He uses a wheelchair.

During speeches, the Texas attorney general, who is now a gubernatorial candidate, is known to pre-emptively address any questions on the topic — often humorously — with an explanation of the 1984 accident that left him partially paralyzed. At campaign events dating back to 2002, he has shown brief video clips describing how a falling oak tree crushed his spinal cord while he was jogging with a friend through the Houston neighborhood of River Oaks.

He emerged on the statewide political scene in 1995, when, after Gov. George W. Bush appointed him to the Texas Supreme Court bench, the court building updated its facilities to comply with the Americans with Disabilities Act.

“Court builds ramp to justice, for a justice,” reads one headline from the Austin-American Statesman.

Now, the adversity that Abbott has faced has become the symbolic centerpiece of his recently launched gubernatorial campaign, which he announced on Sunday — the 29th anniversary of his accident.

“My greatest fight began on this date,” he said to a crowd gathered in San Antonio. “It was a challenge that made my even being here, highly improbable.”

In a five-day, 10-city tour across the state since then, Abbott has been introducing himself as a fighter for strong Texas values, a candidate with a literal spine of steel. As someone who uses a wheelchair, he says, he knows what it means to struggle with physical and emotional challenges.

“I demonstrate what every Texan exemplifies every day — the ability to overcome adversity,” he said at a campaign stop in Houston.

See his heartwarming intro campaign video for a distilled version of this. Now we both know that the only thing Abbott fights for is the interests of the powerful. But a lot of people don’t know Greg Abbott well, and they don’t know that he’s never done a thing for regular Texans. To someone who doesn’t know Greg Abbott and is just tuning in now, he might look like an underdog himself, and as long as he manages to avoid talking about his actual record and his beliefs, he might sound downright appealing. The key is making sure that people know about the real Greg Abbott.

Whether Abbott can sway blue-collar voters is uncertain.

Joe Silva, 54, a worker at the boot factory and a lifelong El Pasoan, said he would probably vote for Abbott despite not knowing a lot about him.

“He’s a good man, I heard. He went through that tough accident,” he said.

But when asked if Abbott’s opposition to the federal health care reform legislation or support for the voter ID law mattered to him, Silva paused.

“Oh, I didn’t know that,” he said. “ I guess we’ll see what he has to say. I don’t know much about him.”

Remember, Abbott isn’t used to talking to people who don’t habitually vote in Republican primaries. That’s why he thinks that wooing voters by bragging about the things he’s done that they don’t like is a good idea. He just has no experience talking to non-true believers. That’s all to the good, but we can’t count on that. More to the point, we can’t let Abbott get away with using his personal story as a way to smooth out his extremely rough and, well, extreme edges. To borrow a page from the Karl Rove playbook, we need to turn his strength into a liability.

How to do that? There’s no question that Abbott has overcome a great deal of adversity in his life, the kind of adversity that most of us are fortunate to never face. That speaks well of his character and inner strength, but there’s an aspect to his success at overcoming that adversity that I have not yet seen mentioned anywhere. I don’t know Abbott’s medical history, but I think it’s safe to say that it includes surgeries, medication, physical therapy, medical equipment, and other things that undoubtedly cost a lot of money to provide. I have to wonder where Greg Abbott might be today if he had been one of the millions of Texans that don’t have health insurance at the time of his awful accident. Medical bills force millions of people into bankruptcy every year. Many other people deal with the problem by simply not getting the help and treatment that they need. Last week, Dear Prudence ran a letter from a woman who lost several teeth during a prolonged stretch of unemployment for her and her husband because she just couldn’t afford to go to the dentist. I guarantee you, there are a lot more stories like that in Texas than there are stories like Greg Abbott’s, and it’s not because the people behind those stories lacked character.

Thankfully for Greg Abbott, he never had to deal with any of that. Yet he has spent the past three years doing everything he can to keep the millions of Texans who lack health insurance from getting it by his relentless litigation against the Affordable Care Act. If he has any alternate ideas how to alleviate this longstanding problem, he’s not talking about it now, and never once in his ten plus years as Attorney General has he used his platform – never mind his personal experience as someone who relies heavily on quality medical care – to advocate for those in that position. In short, he would deny the same type of care that he himself has benefited from to millions of people who could not now receive it. His personal story may be admirable, but it sure hasn’t helped him to learn empathy. If Democrats don’t start pointing that out now, he might just be able to get through this campaign without people realizing that. We cannot let that happen.

Note that I made it this far without mentioning the multi-million dollar award that the strongly pro-tort “reform” Abbott received after his injury. Lisa Falkenberg talked to him about that, and somewhat to my surprised threw him off his talking points a bit. I say “somewhat to my surprise” because Sen. Kirk Watson tried to make an issue of this in the 2002 AG race and it largely backfired on him. That was before the strict med-mal cap was adopted, though, so perhaps another go at it might be worthwhile. It’s clear from reading Falkenberg’s piece that Abbott has the same lack of insight about just how far removed his own experience has been from so many other people’s as he does with health insurance. The point remains that there are some very tough questions that Abbott can and should face, and the sooner the better.

Opposition gearing up for the water fund amendment

The legislation to create a state water infrastructure fund, and the joint resolution that authorized tapping the Rainy Day Fund for up to $2 billion to seed it, had a rocky road in the legislature and wasn’t completed until the last weekend of the regular session. Now the task is to pass the constitutional amendment that the joint resolution enabled on the ballot, and that’s no sure thing, either.

If ratified in the Nov. 5 election, the proposed constitutional amendment would create a state water development bank that supporters say is vital to help Texas avert a worsening water shortage over the next half-century.

The unfolding campaign appears almost certain to match the contours of the legislative debate, balancing the need to keep Texas economically vibrant with a robust water supply against Tea Party-fueled opposition over spending rainy-day money on the multibillion-dollar program.

Nine other amendments are heading to the state’s 13 million-plus voters, but Senate Joint Resolution 1 is easily the farthest-reaching. Senate Natural Resources Chairman Troy Fraser, a chief proponent, said he hopes to muster “an army of people” into the campaign to push the measure to victory.

The effort is expected to include much of the state’s political leadership, including Gov. Rick Perry and Lt. Gov. David Dewhurst.

H204Texas, a coalition that includes chambers of commerce, energy companies, water suppliers and other interests, has already started mapping out a political-style campaign that includes fundraising, media buys, op-ed pieces and elaborate use of social media.

“We’re already in full force,” said Heather Harward, the coalition’s executive director.


But opposition is also taking shape as an array of conservative groups — including Tea Party and citizens lobby organizations — work their formidable email networks to point up what they say are a number of reasons why the initiative should be defeated.

Recycling a major element from the legislative debate, opponents have begun to denounce the proposed use of $2 billion in state rainy-day funds, which lawmakers approved in a separate appropriations bill to capitalize the proposed bank.

Opponents say that putting the $2 billion into a constitutionally dedicated fund enables supporters to avoid having the money count against a state spending cap, which conservatives both in and out of the Legislature have vowed to protect vigorously.

“We’re going to have to oppose it,” said JoAnn Fleming of Tyler, executive director of Grassroots America, which she said networks with more than 300 Tea Party and liberty organizations.

Fleming said members of her organization and related groups plan to work through summer and fall in a “good old-fashioned grassroots effort” to drum up votes against the initiative. “We’ve been successful with that in the past,” she said.

One influential conservative group, Texans for Fiscal Responsibility, came out against the proposal during the just-ended regular legislative session, but group President Michael Quinn Sullivan said in an email that “it’s premature to speculate on what we may or may not be doing in the fall on constitutional amendments.”

“A great many conservative groups opposed SJR1 in the legislature,” said Sullivan, who is president of Empower Texans and Texans for Fiscal Responsibility. “We know a lot of folks are going to be talking about it in the fall. If or when we decide to engage in that issue, we’ll engage.”

Chuck Molyneaux of McKinney, 73, a retired software developer who heads the North Texas Citizens Lobby, said his organization is reaching out to its allies in the Tea Party community to oppose the measure and the proposed use of rainy-day funds.

“We’re going to do our best to keep it from being passed,” he said. “This one just reeks of smoke and mirrors.”

I’ll save the debate about the merits of the amendment for another day. I just want to point out that historically speaking, the vast majority of amendments that get put on the ballot do get passed. However, three of the five that were defeated in the past decade went down in 2011. Here’s a brief recap of how this voting has gone:

2011 – 7/10 passed
2009 – 11/11 passed
2007 – 16/16 passed
2005 – 7/9 passed
2003 – 22/22 passed

There are two interesting things about the 2011 election. One is that the referenda that failed were not exactly high profile or had any apparent opposition going into the election. Here’s the ballot statement of the five amendments in 2011 and 2005 that were rejected, first from 2011:

Prop 4 Permit county to issue bonds for development, 40.26 to 59.73
Prop 7 Permit El Paso County to create reclamation districts, 48.29 to 51.50
Prop 8 Appraisal for ad valorem tax of land devoted to water stewardship, 47.00 to 52.99

And from 2005:

Prop. 5 Commercial loan interest rates defined by Legislature, 43.41 to 56.48
Prop. 9 Six-Year term for regional mobility authority, 46.67 to 53.32

Unlike 2005, the year of the Double Secret Illegal Anti-Gay Marriage amendment, there wasn’t anything particularly high profile in 2011, though Prop 4 was opposed by various anti-toll road groups. I have no memory of the defeated issues from 2005. The other thing about the 2011 election was that it had the lowest turnout of any referendum on this list:

2011 Turnout – 690,052
2009 Turnout – 1,058,986
2007 Turnout – 1,096,410
2005 Turnout – 2,260,695
2003 Turnout – 1,470,443

That might have had something to do with it, though recall that the 2003 election, which included the medical malpractice tort “reform” referendum was held in September (back when there was still a uniform election date in September) for the deliberate purpose of keeping turnout low, which supporters of tort “reform” assumed would be better for their cause. They didn’t want to be on the same ballot as the high-turnout Houston Mayoral election that year. It’s not clear to me whether turnout will be a factor one way or the other for SJR1, but on the whole the lower the turnout the greater the influence of the more motivated voters, and I’d put my money on the antis being more motivated at this time. So keep an eye on that. EoW has more.

Protecting polluters


Ship Channel circa 1973

It’s never been easy fighting powerful polluters in Texas. A bill approved by a Senate committee today would make it even harder. With a big push from the Texas Chemical Council and the Texas Association of Business, the Senate Natural Resources Committee voted 6-3 today for legislation “streamlining” (read: weakening) the process that communities and environmental groups can use to challenge permits to pollute. (Democrats Rodney Ellis and Carlos Uresti as well as Republican Robert Duncan were the ‘no’ votes.)

“We are very disappointed by the committee’s vote today,” said Environment Texas Director Luke Metzger. “The deck is already stacked against residents when a powerful polluter applies for a permit to discharge chemicals in to our air, water and land.”

Senate Bill 957 by Sen. Troy Fraser (R-Horseshoe Bay) would put limits on contested case hearings, mini-trials in which each administrative law judges hear testimony and evidence from each side. Environmental groups already complain that the process is flawed: The judges can only offer recommendations to the Texas Commission on Environmental Quality. That agency, run by corporate-friendly Rick Perry appointees, often ignores or downplays the judge’s proposals.

However, SB 957 would weaken it even further. Fraser’s proposal would shift the burden of proof from the company seeking the permit—often some of the most lucrative and powerful corporations in the world—to the protestant, often a hastily-formed grassroots group or an environmental organization. The bill would also strictly limit how long the contested case hearing could last; limit who could participate; narrow the scope of the hearing; and eliminate discovery.

Here’s SB957. It’s not the only polluter-friendly bill out there.

Some county governments have found that when it comes to suing corporations over polluted property, hiring a private law firm on a contingency fee basis is the way to go.

But against the backdrop of a multi-billion dollar dioxin case in Harris County, there’s an effort to outlaw those arrangements in pollution lawsuits. The House Committee on Environmental Regulation has scheduled a hearing today on a bill that would ban counties from using private firms, HB 3119.

The bill has the support of the Texas Conservative Coalition Research Institute that compiled a report on what it calls the “dubious practice of employing private lawyers on a contingency basis.”

“The arrangement creates a variety of perverse incentives. A county faces no risk in bringing a suit and the outside, contingency-based counsel has no incentive to settle the suit,” said Brent Connett, communications director for the group.

The group argues that instead, contingency fee deals encourage private firms to enrich themselves at the expense of adequately funding the cleanup of toxic sites.

Harris County, which was the focus of the conservative group’s report, says contingency fee arranagements are vital to its efforts to litigate pollution cases.

“We don’t have money to go out and hire lawyers. You’re talking about, at a minimum, hundreds of thousands of dollars that we would have to spend up front just to go to court. With the contingency fee, we don’t have to do that. We only pay if we win,” said Terrence O’Rourke, special assistant to the Office of the Harris County Attorney.


[Harris County] points out that the big corporations fighting the suits often use very experienced, highly-paid attorneys.

“They’re spending millions on their lawyers and Harris County can’t afford that. We’ve got contingent fee lawyers,” says O’Rourke, the county’s special assistant.

The point of taking cases on contingency is that it only pays to take cases you think can win. Otherwise, it’s a lot of hours down the drain for nothing. One could argue that it’s the attorneys for the polluters that have no real incentive to settle, since they get paid by the hour. But maybe as a compromise, we could set up a public defender system for the businesses that find themselves plagued by these suits, to represent them free of charge. Think the polluters would go for that? Yeah, me neither.

Here’s the Chron on these two bills:

“It surprises me a little bit because there is no history of us settling cases in opposition to the attorney general or against the wishes of the attorney general,” said Rock Owens, who heads the environmental division in the Harris County Attorney’s office, which historically has filed the most civil environmental lawsuits in the state.

Owens said the legislation would diminish an authority local governments have had for decades to punish environmental offenders, and also make for an uneven playing field as governments cannot afford to pay private attorneys on an hourly basis like the companies they sue.

While the county has been filing environmental cases for a long time, it only recently began recruiting outside counsel. Six cases have been relegated to private firms.


Harris County Judge Ed Emmett said the county has not taken an official position on hiring outside lawyers on a contingency fee basis, but that all counties “ought to be able to make those decisions on their own.”

Once again I note the irony of people who rant and rage about the federal government telling Texas what it can and can’t do but who are lining up to tell various local governments, often in localities far from their own home districts (Rep. Cindy Burkett, author of HB 3119, is from the suburbs of Dallas), what they can and can’t do. The good news is that SB957 likely won’t get past the Senate’s two-thirds rule, while HB3119 hasn’t yet been voted on in committee. If we’re lucky, it won’t have enough time to make it through, or it too will die from insufficient Senate support. But until they both do die, they’re menaces to be watched.

Fix what’s broken first

What Texas Watch says.

Texas Watch

Imagine this scenario. Texans are facing a physician shortage. Under-served rural and poor communities struggle to attract doctors to serve their needs. Politicians scramble to find a solution to the crisis. That is where we were 10 years ago. Things aren’t so different today.

Back then, the lobbyists and political spinmeisters promised that if we gave up our ability to hold a dangerous doctor accountable, then we’d see the physician supply problem – and a host of other problems in our health care system – evaporate. So, voters narrowly passed an amendment to our state’s constitution that gave politicians the ability to eviscerate legal accountability when you are needlessly harmed by medical negligence.

Flash forward to today. Under-served communities continue to struggle to attract good doctors. Our state ranks near the bottom in per capita physicians. Not to mention the fact that our health care costs are higher and quality of care is worse. And, yes, politicians are scrambling to find a solution.

Evidently the policies enacted 10 years ago haven’t worked. Otherwise, why would this still be a problem needing additional legislative action?

This time, they are considering legislation by Sen. Jane Nelson, chair of the Senate Health & Human Services Committee, to improve physician supply by increasing the number of residency slots available, rewarding medical schools that find ways to keep doctors in Texas, and forgiving medical school loans for doctors who agree to see poor patients. These are laudable goals and lawmakers should support the bill.

The real question, however, is this: Since we know that tearing up our constitution under the guise of better health care is a failed policy, why don’t we restore the patient protections first? Not only has this failed idea not solved the doctor supply problem, it hasn’t lowered health costs for families or the state. Nor has it improved the quality of care. We are, in fact, dead last in the nation in terms of quality of care.

Politicians – including Gov. Perry – should stop defending this policy that has torn a hole in our constitution. Instead, they should restore accountability so that when one of the very few doctors who commit most of the medical negligence harms a patient, they are held responsible for it. They and their insurance companies – not taxpayers or the injured patient – should bear the cost and face public scrutiny for their decisions.

Let’s move forward to address the physician supply problem honestly and without cynicism. Sen. Nelson is on the right track. Incentivizing good doctors and hospitals to serve Texans is a great idea worthy of support. But the first step is admitting when we have made a mistake and fixing it.

I don’t really have anything to add to that. Tort “reform” has always been a crock and a scam, and the only beneficiaries of it have been the insurance companies and bad doctors. And because it’s in the constitution, we’ll probably never get rid of it.

Judicial Q&A: Michele Petty

Note: As I have done in years past, I am conducting written Q&As with judicial candidates. This one is a little different in that the questions were originally asked by someone else, but the idea is the same. Further explanation after the post.

Michele Petty

1. Please explain why voters should elect you over your opponent.

Justice Hecht thought it was OK to stick the taxpayers with nearly half a million dollars of his personal legal bills at a time when Texas is closing its parks and laying off its teachers. The cronies who submitted special appropriations bills on his behalf did not get the bills passed, so Justice Hecht sent letters to lawyers and litigants with cases pending asking for donations to pay off his debts. Some got handwritten notes. Those who paid $5000 or more according to Texas Watch won 8 out of 9 times. Those fees arose out of his appeal of the Judicial Conduct Commission Admonishment for “willfully and persistently violating” the judicial canons. The Admonishment was overturned on appeal by a panel comprised of a majority of Republican judges from his home Court of Appeals who were appointed by the Chief Justice who sits next to him on the Court.

Justice Hecht also has an unresolved $29,000 ethics fine from 2008 for accepting an illegal campaign contribution and then failing to report it. His appeal should have been dismissed want of prosecution over two and a half years ago under Travis County local rules, but the attorney general’s office has not filed the motion, and has not set the case for trial. (Attorney General Greg Abbott sat on the court with Justice Hecht.)

I have recent jury trial experience, run my own firm and am Board Certified in Civil Trial Law. Justice Hecht has not tried a case in 30 years and is not Board Certified in anything. I have been nationally recognized for a top ten verdict and have handled cases against multinational corporations. The Court is all Republican with only two women and no contingent fee or plaintiff’s practice attorneys. I would bring much needed perspective and balance to the court.

2. The Texas Supreme Court has been described as a “conservative court” for more than 15 years. Do you think that conservatism is a product of the justices themselves or of laws of the Texas Legislature that the high court must interpret?

Six of the nine Justices currently on the Court were appointed by Governor Perry, and some have advertised themselves as the most conservative on the court. While the Legislature has enacted conservative legislation in the last fifteen years, the court has gone beyond what was enacted and engaged in judicial legislation to further restrict the rights of injured Texans. Laws that did not pass legislatively were adopted by the Court, and the court has interpreted statutes in favor of businesses even though such language is nowhere in the statute nor legislative history.

3. The Texas Supreme Court has a reputation for being pro-business, especially in tort cases. Do you agree or disagree and what can be done to correct that impression?

The Texas Supreme Court deserves its reputation for being pro-business. Wal-Mart has been to the Texas Supreme Court 12 times and has won all 12 times between 1998 and 2005 according to UT law professor David Anderson. ( Wal-Mart prevailed in only 56 percent of the 81 cases in other states.) In a 2007 study of 69 opinions written by the court in 2004 and 2005, Anderson found that defendants won 87% of the time. From 2000-2010, the Texas Supreme Court ruled against consumers 79% of the time according to Texas Watch. Recent cases have eliminated entire causes of action and elements of recovery to insulate businesses from future suits.

The Justices have received so much business related PAC money that realistically Texas must change the way Justices are selected so that campaign contributions are no longer part of the equation. (Justice Don Willett received and spent over $1.4 million for his May primary.) Otherwise, Texas will have to turn blue with voters sweeping out a majority of the incumbents in the next election cycles to restore balance to the court.

4. Some critics of the court believe it goes out its way to disregard jury verdicts. What are some of the reasons the Texas Supreme Court should overturn a jury verdict?

A ten year study by Texas Watch reports that the Texas Supreme Court overturns jury verdicts 74% of the time; however, jury verdicts should be overturned when the trial court has committed reversible error or there has been jury misconduct. Trial judge mistakes in admission and exclusion of evidence, improper jury argument, defects in the jury charge and errors of law can justifiably cause the jury verdict to be reversed.

5. What do you hope to accomplish during a six-year term on the Texas Supreme Court?

I will work to provide better access to justice for the people of Texas. I have direct experience with legal services for indigent and low income clients in contested family law matters. I am sensitive to the needs of the indigent for legal services, but am also respectful of the family bar and those administering legal aid programs and will act to make sure that the solutions implemented are in fact workable and are not riddled with the “80 substantial defects” identified by the Family Law Foundation in the forms proposed by Justice Hecht’s committee. Access to justice also includes the opportunity to redress grievances in a court of law before a jury of peers. I will act to curb the court’s judicial activist trend that inhibits Texans’ ability to meaningfully have their day in court.

I believe that judges should not be career politicians and will work toward the adoption of sensible term limits. I will work to change the way justices are selected.

Note: This Q&A was sent to me by Petty; it was originally slated to run in Texas Lawyer but they edited out her charges against Justice Hecht, and she objected to that. The questions were all asked by Texas Lawyer. Petty added the following bits of information in a followup email:

This is the Texas Ethics Commission order Justice Hecht appealed

This is the Texas Judicial Conduct Commission Public Admonitition:

It all depends on what your definition of success is

By any objective measure, tort “reform” has been a failure.

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 onlycurb 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.

Of course, that’s assuming the purpose of tort “reform” was to do things like help control health care costs or increase the supply of physicians. If those were your goals, you would have to admit that you didn’t get the results you might have wanted. Given that medical malpractice costs have never been anything more than a minor component of health care costs, this shouldn’t have surprised you, but never mind that. But these were at best secondary reasons for pushing tort “reform”. If they happened to bring about those results, that would be a bonus. The real purpose of tort “reform” was to kneecap trial attorneys, and on that score it’s been a smashing success. The answer to the question depends on what question you ask.

Still more evidence that tort “reform” is a scam

Recently, I blogged about a Public Citizen report that documented the ways in which tort “reform”, specifically medical malpractice damage caps, are a scam that has done none of the things its backers promised. You might have read that and thought “sure, but Public Citizen is a lefty group, and so they would never have liked med mal caps to begin with”. If so, then you should know that a researcher at the libertarian Cato Institute just released a paper that came to similar conclusions. Here’s a quote:

When asked how consumers benefit from medical malpractice insurance, industry executives typically mention only patient compensation. Yet much more is at work.

Competition in the market for medical malpractice insurance, and each insurer’s interest in reducing its exposure to malpractice awards, leads insurers to provide oversight that protects consumers from physician negligence. Malpractice underwriters review physicians annually. They evaluate claims histories and investigate loss of hospital privileges, substance abuse, and loss of specialty board certification. They alert the medical community to situations that result in bad outcomes and offer advice on how to reduce such outcomes. The evidence presented here shows that physicians pay a price for putting patients at risk. Carriers reward claims-free physicians and physicians who take part in risk-management activities. The industry provides oversight of risky practitioners, dictates patterns of practice, monitors the introduction of new procedures, imposes policy exclusions for specific activities, and denies coverage in the most egregious cases, precluding affiliations that require insurance.

More broadly, patients derive protection from an interdependent system of physician evaluation, penalties, and oversight that includes hospital and health maintenance organization credentialing and privileging activities, specialty boards, and the medical malpractice insurance industry. Underlying nearly all of these activities is the threat of legal liability for negligent injuries. Reducing physician liability for negligent care by capping court awards, all else equal, will reduce the resources allocated to medical professional liability underwriting and oversight and make many patients worse off. Legislators who see mandatory liability caps as a cost-containment tool should look elsewhere.

So there you have it. And in the irony department, Texas Watch adds this:

The Cato paper is written by Shirley Svorny, an economics professor at Cal State-Northridge and an adjunct scholar at Cato. Her bio reports that she has participated in health policy summits hosted by the Texas Public Policy Foundation.

That would be the right wing, tort-“reform”-touting TPPF. Something tells me Professor Svorny will not be invited to share this research at their next meeting.

Tort “reform” is still a scam

I know, I’m as shocked as you are.

A national report released Wednesday says the 2003 Texas law that limited damage awards in malpractice suits has caused health care spending to rise and has not significantly increased the number of doctors in Texas.


The 24-page report by Public Citizen, “A Failed Experiment,” says that using Texas as a model would benefit doctors and insurers — not residents.

The report claims that Medicare spending in Texas has risen faster than the national average, and so have private health insurance premiums. It also says that, contrary to Perry’s claims, 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.

Organizations that support the 2003 law — the Texas Medical Association and the Texas Alliance for Patient Access — disputed the report’s assertions on the number of physicians who have come to the state. As for health care costs, “we never said consumer costs would go down,” Jon Opelt, the alliance’s executive director, said Wednesday.

You can see the Public Citizen press release here, and the full report here. I wish I had done enough blogging on the 2003 tort “reform” issue to take a crack at evaluating Opelt’s claim that no one promised this would help consumers, but I didn’t so I can’t. It sure sounds bogus to me, and I don’t believe him for a minute. I distinctly remember seeing pro-tort “reform” propaganda in the waiting room of our obstetrician around the time of the vote, and while I can’t remember exactly what it said, I’m sure it promised some benefits to the voting public. Anyway, while I can’t directly judge that claim I can say that the pro-tort “reform” side did make some outlandishly exaggerated promises about insurance rate reductions for doctors that they later tried to walk back. The Public Citizen report notes that insurance costs have eased a bit for doctors since 2003, but not that much. Anyway, check it out for yourself, and if you have any clearer memories – or better yet, evidence you can point to – about what the tort “reform” crowd said would happen if we all gave the insurance lobby a pony, leave a comment and let us know.

Another point of order delays Eissler’s school bill

HB400, the bill by Rep. Rob Eissler that among other things raises the 22:1 student:teacher limit in grades K-4, came up for debate last night after the “sanctuary cities” bill got sidetracked by a point of order. Here was the original AP story about this bill going into the debate.

Districts could increase class sizes, cut employee pay and give teachers unpaid furloughs under the bill by Rep. Rob Eissler, R-The Woodlands. Schools could also wait until the end of the academic year to notify teachers that contracts won’t be renewed. Current law says teachers have to be notified 45 days before the end of the year.

GOP House leaders say the bill will free schools from state mandates while saving teacher jobs. They say districts have been begging for more leeway in dealing with lower funding because of massive budget reductions.

“These changes should have been made a long time ago,” Eissler said, citing current law that only gives school districts the option of laying off teachers.

But key teacher groups statewide say the bill will devastate educators and their ability to stay in the classroom. They say Eissler’s bill is launching an attack on educators that will result in severe pay cuts and make it even easier to fire teachers.


Teacher advocates argue that the reforms Eissler seeks should be temporary, much like a Senate bill that allows teacher furloughs and salary reductions only while the state faces a budget crisis.

Democrats in the House argued that the bill was just paving the way for legislators to continue underfunding public schools.

“This is a conciliation bill that says we are prepared to downsize and dumb down the educational system of Texas,” said Rep. Sylvester Turner, D-Houston. “It is nothing to do about quality education, nothing to do about excellence, and everything to do with us not wanting to spend one additional dollar from the rainy day fund.”

Eissler did give some ground on these points as the debate opened.

Eissler, R-The Woodlands, demonstrated he came ready to deal when he offered an amendment from the floor that kept the 22-1 class size ratio for kindergarten through fourth grade but made it significantly easier from districts to get a waiver exemption as long as they maintained a 22-1 district wide average. And teachers’ groups scored a victory when Eissler agreed to make the bills’ measures temporary — something he previously said he would not do.

“As much as I hate weakening our 22-1 law at all, all I’m saying is that if we have to do it, we should sunset it,” said state Rep. Mark Strama, D-Austin, the author of the amendment.

Eissler initially said he believed making the measure temporary would be “creating havoc” in school districts. But after a few moments of deliberation, he approved the amendment.

That sunsetting would be for the 2014 school year. These gains did not stop the bill from being put on hold by another point of order from Rep. Trey Martinez-Fischer, who had previously stalled the “sanctuary cities” bill as well.

[Martinez-Fischer] objected to Eissler’s bill because the committee minutes reflect that Rep. Todd Smith, R- Euless, offered a committee substitute for the bill, but the bill printing says it was offered by Rep. Jimmy Don Aycock, R-Killeen.

“So you either have a committee meeting problem, or you have a printing problem,” Martinez Fischer said.

“But – you don’t have a chairman problem,” he said within earshot of Eissler.

The San Antonio legislator told Eissler he could have avoided the problem had only he “put in his two cents” and influenced House Speaker Joe Straus to make Martinez Fischer a chairman. Eissler and Straus are close allies.

“I’d be fixing all these bad bills,” Martinez Fischer said.

“That’s why I love Trey,” Eissler responded.

This morning, Speaker Straus upheld the point of order, saying the bill needed to be reprinted, so it will be Monday at least before it can come back to the floor. Seems like some Republicans must have been expecting this, because many of them didn’t show up on Saturday, enough to endanger the quorum in the House. Despite some frayed tempers, it appears that the House did indeed still have a quorum, and after a motion to stifle debate, the House rammed through the so-called “loser pays” rule, which was the most recent “emergency” declared by Rick Perry, then finally adjourned for the weekend. Monday is going to be a lot of fun.

Spending money on medical students

I have two things to say about this story, which is about a budget rider that would concentrate the money the state spends on graduate medical residencies into the doctors’ first three years of training regardless of how long their residencies take to complete, which would have the effect of favoring general practitioners, who only need three years, over specialists. Actually, before I get into that let me say that I had no idea the state spent any money on this. The story doesn’t get into the details of who the beneficiaries are or how they qualify for it. Anyway, I have two things to say:

Proponents say the budget rider would give residency programs an incentive to produce the primary care doctors Texas desperately needs, because those slots would be fully funded. They say residents who go into specialties that take longer than three years are often paying for themselves — because they’re providing services their supervisors can bill for.

“It is the state’s obligation to use tax dollars in a fashion that best serves the citizens of Texas,” said Dr. Nancy Dickey, president of the Texas A&M Health Science Center, which has one of the state’s largest family medicine residency programs. “As we try to address a physician shortage in a state that continues to grow its population, it would be appropriate for legislators to consider selective use of graduate medical education funds.”

But opponents say it’s misleading to suggest residents in any specialty are making money for their hospitals, especially since they’re now barred from working more than 80 hours a week. They say cutting off funding for years four through seven would have a devastating effect on surgical specialties and those that lose the most residents to other states, from neurology to urology.

“Texas needs specialists and primary care physicians,” said Dr. Susan Bailey, president of the Texas Medical Association. “I would hate to see us sacrifice one for the other.”

In case you haven’t noticed, this budget is full of sacrifice, as far as the eye can see. The vast majority of that sacrifice is being placed on children, the elderly, the poor, the sick, and so forth. I trust you will forgive me if I feel somewhat less sympathy for medical students than I do for these folks. If you find this budget rider intolerable, then by all means please join with the rest of us in demanding that the state generate the revenue to pay for the things it needs to do. But if it comes down to how we allocate the insufficient funds that we now have, there are a lot of other things I’d prioritize over this.

Texas has a physician shortage across all medical fields: In 37 out of 40 major specialties, it ranks below the national average of physicians per 100,000 people. It’s particularly pronounced in primary care, where last year, just 8 percent of Texas medical students went into family practice, down from 14 percent in 2001. More than a quarter of those students left Texas for out-of-state residencies, a strong indicator that they won’t practice in Texas.

Gee, wasn’t tort “reform” supposed to solve that problem? What a shock (*snort*) to learn that it was not the case.

Our healthcare system is great, if you ignore all those people who can’t afford it

State Rep. John Zerwas demonstrates that being a physician doesn’t make you qualified to talk about health care reform. His article is as embarrassingly idea-free as his national colleagues’ plan was. After the usual paean to tort “reform” and invective about government employees getting between you and your doctor – that’s what insurance companies are for! – he tells us that the rest of the country should be just like us:

There will always be those for whom the government will need to play a role. As the chair of the subcommittee on Health and Human Services of the Appropriations Committee during the 81st session, I can certainly attest to this fact. I joint-authored legislation that would have expanded the CHIP program, because there was not a reasonable market solution to this population — children born into families at 300% or less of the federal poverty level ($66,000/year for a family of four). In addition, I sponsored legislation called the Healthy Texans program intended to encourage competitive health plans for working individuals and small businesses at lower incomes.

Texas enjoys a legacy of stepping up to the plate when the needs of its citizens arise. But we have done so by encouraging the growth of business and making Texas a great state in which to raise families. The federal government should respect the sovereignty of the state in this regard. And just as all politics is local, the delivery of accessible, safe, quality healthcare is local. Let Texans Take Care of Texans!

I’m guessing Zerwas refers to SB841 for the CHIP expansion bill. That died during the chubfest, then was temporarily resuscitated by Sen. Kip Averitt, but ultimately died because – oops! – Governor Perry hates CHIP. For some odd reason, Zerwas did not see fit to mention that.

He also didn’t see fit to mention that Texas has an awful lot of uninsured people. Rep. Garnet Coleman, who has a much clearer grasp of this issue, brings that up.

Brick by brick, the state’s healthcare system has been dismantled over the years. Starting with 2003’s rollback under Speaker Craddick, Medically Needy Medicaid —which prevented medical bankruptcies — was eliminated, then the rolls of the Children’s Health Insurance Program (CHIP) were slashed, and damaging privatization schemes were embarked upon. It continued this session as the Republican leadership killed a bill despite overwhelming approval in both chambers that would have allowed working parents to purchase CHIP coverage for their children.

If the “states’ rights” leadership in Texas refuses to do anything for our state, then it’s up to Congress to enact reform that will benefit all Americans, especially Texans. The best plan for health insurance reform is one that affordably covers most uninsured Texans, preserves the insurance of those already covered and lowers health care costs.

Texas’ current system has left six million Texans without health insurance. Those who can afford coverage fight every day against skyrocketing premiums, declining benefits, medical bankruptcies, preexisting conditions, and the constant threat of being kicked off their own insurance plan. Because of our dismal health standings, we have the most to gain from federal health insurance reform under consideration.

Lowering costs and maintaining affordability is essential to achieving successful reform. In 2008, an alarming 6.9 million Texans spent more than 20 percent of their income on health related costs. Due to skyrocketing insurance rates, workers are no longer rewarded with a pay raise — they have to settle for keeping their insurance.

Coleman is also referring to SB841, but unlike Zerwas he recognizes it as a failure and not a success, because it didn’t get to the Governor’s desk and would have been vetoed if it had. I’ll give Zerwas credit for trying, but he is at best hopelessly naive about what the true obstacles are to achieving that goal.

Oh, and did you see that bit about the six million Texans without health insurance? That’s 25% of the state population. If you go back to that Ezra Klein post, the CBO estimate for the US is 17 percent of legal, non-elderly residents won’t have health-care insurance in 2010. If we remove those over 65 (10.2% of the population, or about 2.4 million) and the undocumented immigrants (estimated to be 1.4 million in fiscal year 2005), those six million uninsured represent about 30% of the relevant total. And even if you assume that 6 million figure includes all 1.4 million undocumented immigrants, and subtract them from each population, we’re still at 20% of legal residents, and 22% of legal, non-elderly residents. In other words, Texas fares way worse on this metric than the country as a whole. There’s a reason the rest of the country isn’t interested in doing as we do.

Committee assignment reactions

Rather than update the earlier post, I thought I’d do a new one rounding up various reactions to the committee assignments in the House.

Matt says the Republican “Gang of 11” won big, but Democrats got little respect.

Phillip is somewhat more sanguine. He did a ton of number crunching and other analysis, and deserves more than a one-line summary, so go read what he wrote.

Grits sees some good things for criminal justice bills.

EoW sees good things for WilCo’s freshman Rep. Diana Maldonado.

Vince thinks the Dems got rolled.

Greg is happy for his Rep., Scott Hochberg.

Equality Texas is encouraged by the Speaker’s appointments.

Finally, via the Texas AFL-CIO email list, Ed Sills says Straus “appears to have done a good job of balancing an intricate web of considerations in appointing House committees”, but he takes a look at one particular committee and sees trouble:

Judiciary & Civil Jurisprudence – Todd Hunter, R-Corpus Christi, chair; Bryan Hughes, R-Mineola, vice chair; Dan Branch; Will Hartnett; Bryan Hughes; David Leibowitz; Roberto Alonzo; Jim Jackson; Tryon Lewis; Jerry Madden; Armando Martinez; and Beverly Woolley. Panel is the so-called “tort reform” movement’s ultimate dream. Hunter returns after long absence from House to chairmanship after tort reformers funded his campaign to unseat former Rep. Juan Garcia. Unbalanced 8-3 Republican makeup recalls days when Joe Nixon took dictation from anti-lawsuit crowd at Capitol. Panel consolidates two prior committees into powerhouse that would consider both civil justice and judicial selection. Something nasty could be brewing here.

Yet another thing to keep an eye on. What’s your reaction to the committee assignments?

UPDATE: And Burka weighs in, with his take on who won and who lost.

UPDATE: The TLCV gives its scorecard numbers for members of relevant committees.

UPDATE: Banjo asks if his Rep., Dennis Bonnen, is a winner or loser.