LeftOut

by Daryl Moore

PROTECT THE PROCESS

Vote No on Proposition 12 on September 13

As part of its business this year, the Texas legislature capped non-economic damages in medical malpractice cases. Now Texans who are wrongfully and negligently injured by their doctors can receive a maximum of $250,000 for pain, suffering, and disfigurement resulting from medical negligence. In other words, if your doctor accidentally cuts off the wrong leg, your pain and suffering is worth $250,000. Period.

Parents who had lost children to medical negligence, women who had undergone unnecessary mastectomies, and men who had their prostates removed after erroneous lab results testified against the legislation. Opponents pointed out that if juries are competent to impose death sentences on individuals in criminal cases, they are smart enough to assess monetary damages against doctors and hospitals in civil cases.

Still, the doctors and hospitals won. The caps passed as part of a tort-reform package aimed at reducing malpractice premiums even though studies have shown that states that passed such caps haven’t realized a reduction in malpractice premiums.

Unhappy with the legislation they’ve already gotten, doctors, hospitals, and insurance companies are now asking voters to support Proposition 12, a proposed amendment to the Texas constitution. Proposition 12 would amend the state constitution to give the legislature unfettered discretion in deciding whether to expand the caps on non-economic damages to all types of cases—not just medical malpractice cases—or to banish the recovery of non-economic damages outright.

Proposition 12 is a direct attack on the open-courts provision of the Texas constitution, which guarantees citizens unrestricted access to the courts and a just remedy —determined by the courts—for any harm done to such citizens. Proposition 12 makes guaranteed access to the courts discretionary with the legislature. The framers of the Texas constitution, however, never intended for the legislature to have the power to determine who has the right to seek redress in the judicial system. That’s why the framers included guaranteed access to the courts in the open-courts provision, which exists in the constitutions of 40 other states.

Proposition 12 is the legislature’s attempt to erode the separation of powers that are inherent in the Texas constitution, and which recognize that the executive, legislative, and judicial branches of government share power equally. Indeed, Proposition 12 is nothing more than a self-serving attempt by the legislature to increase its own power at the expense of the judicial branch.

In an attempt to shore up its chances of obtaining passage of the ill-conceived proposal, the legislature set the vote on Proposition 12 for September 13, a Saturday on which no other elections are scheduled. The legislature could have scheduled a vote on the amendment at the same time Houston is holding its election for city offices. That would have been significantly cheaper. The legislature chose not to do so, however, because it feared that a high minority voter turnout would decrease the likelihood of the amendment’s passage.

So, the legislature picked a day when nothing will be on the ballot except proposed constitutional amendments with the hope that doctors, hospitals, insurance companies, and other big-business interests will turn out in sufficient numbers to pass the amendment.

What the legislature did not anticipate is that a broad array of groups would recognize the legislature’s attempt to steal constitutional power from the judiciary and would lobby to defeat the proposal. Organizations including the American Association of Retired Persons, the GI Forum of Texas, the Older Women’s League, Texas Advocates of Nursing Home Residents, and the United Farm Workers have coalesced to condemn Proposition 12’s ridiculous rewriting of the Texas democratic process.

Gay, lesbian, and transgender persons should join these groups and voice their opposition to Proposition 12 by voting no on September 13. The Texas legislature does not need to have the constitutional ability to increase its power at the expense of the Texas judiciary or Texas citizens.

Writing from the liberal end of the spectrum, Houston attorney Daryl Moore has a general practice and is board certified in civil and appellate law.

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