Think Tank starts with a recollection of the purpose of tort law. Then, details what Texas has put in its place to the detriment of its citizens.
And, warns us that much of what now exists in Texas is headed to the legislatures and courthouses throughout the nation, including Florida.
Once upon a time, the purpose of tort law was to make injured people whole. In Texas, victims of medical malpractice or corporate wrongdoing, no matter how poor or powerless, had some redress through the legal system. The Texas constitution plainly states that “all courts shall be open” and that every injured person “shall have remedy by due course of law.” But through the efforts of a small group of wealthy and politically influential businessmen and a legislature slavishly devoted to the organization they founded, Texans for Lawsuit Reform (TLR), those days are gone, and these rights may disappear across the nation as President Bush pushes his campaign against “greedy trial lawyers” and “frivolous lawsuits.”
Here is what can happen to you in Texas today, thanks to tort reformers and the Legislature:
If you go to an emergency room with a heart attack and the ER doctor misreads your EKG, you must prove, in order to prevail in a lawsuit, that he was both “wantonly and willfully negligent.”
If you took a drug that was later recalled after studies proved it could cause fatal complications, the manufacturer can escape liability for your serious injury or death if the instructions inside the package were approved by the FDA when you took the medicine.
If your child is blinded at birth because of medical malpractice, there is a good chance that her only remedy is to receive a few hundred dollars a month for the rest of her life.
If a driver hits your old Ford Pinto from behind and burns you beyond recognition, Ford will almost certainly be able to shift the blame from its defective product to the driver of the other car.
If you live in an apartment complex that lays off security guards and fails to maintain its locks and you are raped as a result, the apartment owner can still avoid liability.
All of the above presumes that you can find a lawyer to take your case; many can no longer afford to do so because tort reform has reduced your odds of winning. And should you by some slim chance win and the defendant appeals, your odds of ultimately prevailing on appeal are 12 percent as of 2004–the paltry rate at which the Texas Supreme Court, which has also been subject to the influence of the tort reformers, has found for the plaintiff in cases involving harm to persons or property, according to Court Watch, an Austin-based public-interests organization.
And why has the campaign against trial lawyers been so successful? Here’s how Republican political consultant Frank Luntz explained it a few years ago: “Unlike most complex issues, the problems in our civil justice system come with a ready-made villain: the lawyer. . . . It’s almost impossible to go too far when it comes to demonizing lawyers.”
Since some of my best friends (and all of my partners) are civil trial lawyers, I can report no villainous traits or demons have been observed among them. I have only seen dedicated professionals seeking justice for individual clients who have every right and expectation that wrongdoers would be held responsible for the harm they cause.