Is Tort Reform Constitutional?

By Ronald T. McLain, Dallas Personal Injury Attorney

I feel the need to address this. Tort reform has been addressed many times during elections and debates. Tort reform is not really what it seems. Our founding fathers knew what they were doing when they guaranteed our right to a jury trial in the Constitution. It was guaranteed because they knew too well that the juries (community) would be the best guarantors of the community’s safety. Remember the 7th amendment in the Bill of Rights? “In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.” Again in the Texas Constitution, Sec. 15. RIGHT OF TRIAL BY JURY, “The right of trial by jury shall remain inviolate.” Don’t forget the Texas Constitution open courts provision:  “All courts shall be open, and every person for an injury done him in his lands, goods, person or reputation shall have remedy by due course of law.”

Tort reform, at least the kind that has been passed recently and the kind that is being talked about now, violates every constitutional provision set out above. The recent provisions passed in 2003 that limited non-economic damages in medical malpractice cases to $250,000.00 is a prime example. The effect of this legislation is that when your grandmother in a nursing home is killed by a doctor’s negligence, her heirs can only get medical expenses plus $250,000.00 for her life. The same would be true for your infant child that was killed by a doctor’s negligence. So the Texas Legislature, favoring insurance companies, passed a bill limiting the recovery in these types of cases. This legislation has definitely reduced the number of lawsuits filed since it passed. Fewer attorneys will take these cases on because they are very expensive to prove and require spending tens of thousands of dollars to hire medical experts. By trial time, an attorney will have invested upwards of $100,000.00 in litigation expenses. That is why the suits have declined, along with a cap on what can be recovered.  Imagine that, the Legislature has decided that our Founding Fathers had this one wrong, and they know better. In other words, they don’t trust YOU, the juror.

Be honest, how many of you know someone who has received what insurance companies and politicians call a runaway jury verdict? In fact, I’m betting you have seen the exact opposite. Someone you know who got hurt didn’t get nearly what they deserved from the insurance company responsible for payment. What has not declined as a result of tort reform regarding medical malpractice is the number of reported instances of medical negligence and the repeated violation of physician-patient safety rules. In fact, it has been reported that the number of these instances has gone up. Reduce the penalty for violating safety rules and it makes it less safe for all of us. True community safety in this regard can only be assured if a jury is allowed to fully compensate the harms and losses that someone causes. Has it made health care less expensive? You know the answer to that one, too. The costs keep skyrocketing. Who wins in this instance?  Insurance companies. Certainly not the people our government’s laws are supposed to protect. What about doctor’s malpractice premiums? On the whole, with few exceptions, they have stayed the same, and in some cases, increased. The winner? You guessed it — insurance companies. The only things that have declined are the amount of claims made and payments made out on those claims. 80% of the malpractice claims are brought against 5% of the doctors. Until the physicians do something about weeding out the bad doctors, nothing will change.

Current legislation being proposed includes loser pays. This is where the loser of a lawsuit would have to pay for the winner’s attorneys fees and expenses. One thing about it is it only applies to Plaintiffs (Claimants.)  If a defendant loses, he doesn’t have to pay under this proposed legislation! Only does the Plaintiff have to pay if he loses! I personally find it hard to believe there is a single legislator in America that thinks this is fair. All that does is limit access to the courts, and further discourages lawsuits from being filed, which further puts our community safety at risk. Another one being considered is for contractors.

If you want a firm that knows how to fight insurance companies and believes in you and your right to be compensated for a serious injury, look no further than The Law Offices of Tim O’Hare,, 972-960-0000.