© 2013 The Texas Lawbook.
By Natalie Posgate
Staff Writer for The Texas Lawbook
Tort reform is having a devastating effect on injured Texas citizens’ access to the court and trial lawyers’ ability to represent them, a panel of legal experts told the American Bar Association meeting in Dallas.
Two studies presented at the ABA’s Mid-Year Meeting showed that tort reform laws and Texas Supreme Court decisions from the last decade have greatly altered the way plaintiffs’ lawyers operate their business just to stay alive in the Texas legal market.
The 2003 laws that capped damages in personal injury and medical malpractice verdicts have forced plaintiffs’ lawyers to reject many legitimate cases because the expense of them is exceeding the damages they can actually recover for clients, the studies concluded. Instead, personal injury lawyers are taking more commercial litigation work instead of medical malpractice and products liability cases so they can continue to operate on contingency fees.
One of the studies, which was conducted by the American Bar Foundation, found that 57 percent of Texas plaintiffs’ lawyers in 2001 said they would take a medical malpractice case that involved a 70-year-old retired male client with minimal economic damages, but only nine percent said they would do so when asked the same question in 2006.
“If they’re choosier, that means those courthouse doors are going to close ever much more,” said Stephen Daniels, a senior research fellow at the ABF who was one of the leaders conducting the study.
However, if the lawyers were presented with the exact same client but the damages were caused by an 18-wheeler instead of a doctor, the change in willingness to take the case was minimal – 88 percent would take the case in 2001, and 81 percent would in 2006.
Economic damages in both of these cases are mostly determined by loss of future wages. The study indicates that an 18-wheeler case is “a less complex, less risky and less costly case in which most lawyers would generally be interested.”
The second study, conducted by a research team led by professor Charlie Silver of the University of Texas School of Law, revealed that claims for medical malpractice cases declined 60 percent after 2003 and payouts fell by 70 percent.
Between 2003 and 2009, payouts for the elderly dropped by 80 percent. Out of all adult age groups, total payouts received by elderly claimants increased from less than five percent in 1990 to 14 percent in 2003, and then dropped to 12 percent in 2009. The numbers show, according to the study, that “tort reform interrupted a pattern of convergence between the elderly and the adult non-elderly.”
Other panelists of the ABA seminar, titled “The Juice Isn’t Worth the Squeeze: The Impact of Tort Reform on Plaintiffs’ Lawyers and Access to Civil Justice,” included Dallas appellate lawyer and former Supreme Court of Texas Justice Deborah Hankinson, Dallas personal injury attorney Carmen S. Mitchell and Associate Dean for Academics Ellen S. Pryor of the UNT Dallas College of Law.
Many legal experts predicted that tort reform would have devastating impacts on the civil justice systems for lawyers and their clients and these two studies have proven these forecasts to be accurate.
According to Daniels, the Texas Supreme Court has become less pro-plaintiff since the tort reform measures have taken into effect.
To illustrate, he quoted a Texas lawyer he interviewed for the study, who said “the Texas Supreme Court says it’s about 95.5 percent that the plaintiff is always going to lose at the Supreme Court [level].”
A previous Texas Lawbook story reports that during the time the Texas Legislature passed the 2003 tort reform package, the supreme court justices issues a series of decisions that shifted several key legal questions previously considered questions of fact to be decided by juries, to be decided by judges.
The decisions resulted in a significant increase in the number of cases decided by judges on motions to dismiss or motions for summary judgment.
In 1996, judges resolved 3,488 cases on motions for summary judgment, and in 2010, that number increased by 30 percent to 5,597.
The cases that actually make it in front of a jury have dramatically declined as well. The number of Texas civil jury trials held in 2011 is one-third of the number in 1996. In 1996, juries decided one out of every 48 lawsuits filed, and last year, only one in 183 civil complaints resulted in jury verdicts.
Daniels’ findings are from a series of studies that he has conducted since the 1990s. According to Daniels, his research group has interviewed more than 150 lawyers in Texas – some who say they have closed or changed their practice primarily because of tort reform.
“They have to change what they do to stay in business,” said Daniels. “Plaintiffs’ lawyers are wonderfully creative at finding new niches. Some do commercial work on a contingency fee basis.”
Silver based his study on a large database of closed medical malpractice cases in Texas that date back to 1988. His research group has also found through an analysis of Medicare spending in Texas counties that tort reform has not improved the cost of healthcare. The analysis saw no decline in doctors’ fees for seniors and disabled patients between 2002 and 2009.
“If this effect doesn’t bring down healthcare costs, it’s not going to happen if you apply it nationwide,” Silver said.
According to Silver, his research group currently has a study under review that examines tort reform and physician supply. The study is finding that, despite popular beliefs of tort reform advocates, the laws have provided no statistically significant impact on the number of doctors practicing in Texas.
Another panelist, former Texas Supreme court justice Deborah Hankinson, argued that tort reform was not as popular as it was portrayed when the package passed in the Texas Legislature in 2003.
After leaving her seven-year judgeship at the Supreme Court of Texas 2002, Hankinson headed a public campaign against Proposition 12 – a tort reform amendment that was slated for vote in September 2003. During the 10-week campaign, Hankinson found that Texans who were pro-tort reform generally converted to the other side once they became more educated about the proposition.
According to Hankinson, the campaign gained support from all but one of the major Texas newspapers by editorializing against the amendment, and even doctors were publicly coming out against the proposition. She said that the amendment passed by a very narrow margin in early voting – about 50.1 percent to 4.9 percent – and if the election had been even a month later, her side could have won.
“We won on Election Day, but lost to early voting,” said Hankinson, who now runs a private appellate practice in Dallas. “We were continuing up until the time that polls closed to be influencing public opinion. It was such a dramatic shift of opinion in such a short time that I think, ‘Why aren’t we out there educating how important access to the courthouse is to [citizens]?’ “
“Since that law has been enacted I think you continue to see a great deal of discontent among Texas citizens,” Hankinson added. “Those in support of the law are not happy with what the effect [became].”
One such example is a grief-stricken couple that came to Carmen Mitchell after their 4-year-old child died on the operating table during a tonsillectomy. Mitchell regrettably informed the parents that she couldn’t even look into the case because Prop 12 rules that the child doesn’t have any value.
According to Mitchell, the parents had voted for Prop 12 because they assumed all cases that fell under the amendment would actually be frivolous in nature.
“You would think that if your 4-year-old died during a tonsillectomy then something went wrong in the operating room,” said Mitchell who is a past president of the Dallas Trial Lawyers Association and the Dallas chapter of the American Board of Trial Lawyers. “It’s a devastating case to work on because you can’t make anything right.”
Mitchell urged the audience to look at tort reform in an ethical manner.
“You’ve got an ethical obligation to look at tort reform and how it benefits and affects your clients in the future,” she said.
The seminar was the ABF’s annual Fellows of the American Bar Foundation CLE Research Seminar, which highlights research being conducted by the ABF.
© 2013 The Texas Lawbook. Content of The Texas Lawbook is controlled and protected by specific licensing agreements with our subscribers and under federal copyright laws. Any distribution of this content without the consent of The Texas Lawbook is prohibited.
If you see any inaccuracy in any article in The Texas Lawbook, please contact us. Our goal is content that is 100% true and accurate. Thank you.