Why we don’t want to be like Texas!

The following is an article published in the Winter 2015 issue of the ATLA Docket, the Arkansas Trial Lawyers Association’s quarterly magazine. ATLA members, legislators, and citizens have all contributed to the magazine, and we at ATLA feel like there is a great deal of helpful information to share! If you’d ever like to ask any questions about any articles posted here, please email us at arktla@arktla.org. We’ll be happy to chat with you! Now, on to the article. Why we don’t want to be like Texas!

Why We Don’t Want to be Like Texas

By Matthew Hass
ATLA is proud to be an organization made up of a diverse group of advocates who rally around one passion: protecting our citizens with the promises of the 7th Amendment of the United States Constitution, as well as multiple offerings in the Arkansas Constitution. Arkansas’s Constitution says in Article 2 Section 7, “The right of trial by jury shall remain inviolate, and shall extend to all cases at law, without regard to the amount in controversy . . ..”

In addition, Article 5 Section 32 states, “Provided that otherwise no law shall be enacted limiting the amount to be recovered for injuries resulting in death or for injuries to persons or property.”

Since 1874, Arkansas has held these protections sacred, but this year, some special interests are pushing for Texas-style tort reform. This threatens to violate those provisions by which we’ve governed ourselves for a hundred and forty years. In Arkansas, we still have the right to have our community voice speak to what is right and wrong instead of big government doing that for us. The Nursing Home lobby, the U.S. Chamber of Commerce, and Koch Industry front groups such as the American Legislative Exchange Council (ALEC) are the biggest drivers of special interest tort reform efforts, and have long since held up Texas as the poster child for tort reform. Here we offer a few of the many reasons why the broken promises of tort reform are wrong for Arkansans.

1. Arkansans retain their civil liberties where Texans’ have been stripped away.
In 2003, Texas passed Proposition 12, a sweeping tort reform bill that has harmed countless Texas citizens. Proposition 12 denies Texas citizens of their right to hold wrongdoers accountable by raising the standards by which one may hold them responsible to an impossible level. It’s a clear case of big government making the rules for everyone, instead of a local jury of twelve people deciding what’s best for their community. Sadly, there is no accounting for the number of legitimate lawsuits that can’t be taken to court because the existing cap on damages is far less than the amount that it costs to bring complex cases to trial. As a result, there are endless examples of tragic cases that ended with no consequence to negligent caregivers or broken hospital systems. For links to come of those stories, visit www.arktla.org/tragicoutcomes.

2. Arkansas outperforms Texas in nursing home quality.
In the past, Families for Better Care (www.familiesforbettercare.com) has published a Nursing Home report card that analyzes nursing home performances across the nation. The unfortunate title of “dead last” belongs to Texas for the past several years in a row. The scoring system gives a grade from A-F for every state. Texas receives an overall grade of F while also scoring F’s in six of eight grading categories, including health inspections, verified ombudsmen complaints, and direct care staffing. Arkansas, on the other hand, has improved slightly from last year and received an overall grade of C. While a C is an improvement, when it comes to the care of our most vulnerable, we should never stop efforts to improve until we earn an A+. As we struggle to improve the quality of our nursing homes, why would we ever enact legislation that would insulate operators from accountability instead of enacting legislation that makes the homes safer? Some nursing home chains want immunity, but if their homes were safer, they simply wouldn’t need it. Let’s not take Arkansas down the Texas path, where legislation hinders quality improvements and insulates those giving bad care.

3. Texas has created a safe haven for dangerous doctors.
The Texas Legislature mandated a dangerously low standard of care when, in Proposition 12, they set the standard for bringing lawsuits at Gross Negligence. This means that a doctor or nurse would have to carry the specific goal of killing or maiming a patient to be held accountable for causing harm. This has simply allowed the six percent of bad doctors who account for 60 percent of all medical malpractice lawsuits to continue to make the same mistakes over and over. This year, we have learned that in the United States, there are 440,000 deaths every single year due to preventable medical errors. That makes preventable medical errors the third leading cause of death in America, just behind heart disease and cancer. Texas tort laws do nothing to address this problem, and instead insulate the bad procedures and broken systems that lead to these deaths. A handful of doctors who have problems practicing elsewhere due to committing preventable medical errors are free to continue to practice in Texas. Arkansans deserve the safety that comes with transparency and accountability.

4. Arkansas outperforms Texas in physician supply.
According to a 2012 study by the CDC, Arkansas has 36.5 primary care physicians per 100,000 people. while Texas has 33.6 primary care physicians per 100,000 people. The study shows that in the years between 2002 and 2012, the physician supply across the nation remained stable. Though Texas tort reform advocates love the claim that tort reform increased their physician supply, the numbers don’t back their assertion. Taking away the rights of injured patients simply doesn’t increase physician supply.

5. Medical Malpractice insurance costs more in Texas.
Despite all of the talk about how tort reform improves insurance rates, the numbers tell a different story. In 2014, the average Arkansas malpractice premium is $25,036 where in Texas it is $33,249. The insurance companies have paid out far fewer claims, but the insurance companies are the only ones who see real savings. And, despite the restrictive tort laws, new studies show that how a doctor actually practices medicine is not impacted by the presence of caps on damages. As our system is fee-for-service, there has been virtually no change on the number of tests.

6. In Arkansas, the lives of children, the elderly, and stay at home mothers are held at equal economic value as any other person – not so in Texas.
When lawmakers decide that one person’s value is greater than another, we all lose. Who can quantify the value of a human life? Does an unborn fetus have less value than the man who fathered him or her? In Texas, where caps on non-economic damages are part of state law, the children that are protected with such fervor while in the womb have very little economic value in a civil case. The mother carrying two or three other children in her mini van, struck by a drunk driver – they have no so-called economic worth either. The grief stricken father has no avenue by which to hold the drunk driver accountable. In Arkansas, though, every life is still considered equal.

7. In Arkansas, the Constitution remains the driver of our lawmaking process…but not in Texas.
I consider trial by jury as the only anchor ever yet imagined by man, by which a government can be held to the principles of its constitution. – Thomas Jefferson

How many quotes can I find to remind people that access to the civil justice system was of paramount importance to our Founding Fathers? If you want to check out a few, go to www.arktla.org/founderquotes. Protecting the civil jury trial as a cornerstone of liberty is ingrained into every fiber of the Constitution. When our founders broke away from England, they did so with a list of grievances. Most notable for our current purpose is that a major grievance was the lack of a truly just civil justice system. The king was judge, jury and executioner, and our Founders dreamt of a better way, where the people governed themselves. This experience formed their worldview and shaped every word of the Constitution. They created an amendment for the civil jury trial and they were very specific about things such as the importance of not capping the damage amounts a jury could award. Texas has deemed big government backed by special interests to be a better voice for their people, but Arkansas still holds local control very closely.

So I ask – why would we ever want to be more like Texas? Arkansans are a community of people whose representatives trust their wisdom to decide for themselves how to resolve a civil dispute, as the Constitution intended. They trust them with civil jury trials just as they trust them with criminal trials and deciding the fates of murders or rapists. Arkansans know that this is the core of government by the people, and will not be hoodwinked by special interest groups trying to tell them otherwise. There is no governing by the people that is more local than twelve jurors sitting and listening to the facts of an individual’s case, and that is something we’ll take over a big Texas style government. Arkansans are compassionate, and Arkansans have a very strong, unbreakable sense of responsibility. This is a result of the community shaping each and every one of us from the day we are born until the day we are asked to perform one of the most sacred civic duties, serving on a jury. This is the essence of local control, and is a principle and a way of life that ATLA will continue to defend with vigor.

Sources:

1 – http://nursinghomereportcards.com/2014/09/10/nursing-home-report-card-shows-22-minutes-difference-quality-care-crummy-care/

2 – Oldmixon, Seth. (January 2007). The Great Medical Malpractice Hoax: NPDB Data Continue to Show Medical Liability System Produces Rational Outcomes. Public Citizens Congress Watch. Retrieved from www.citizen.org/documents/NPDB%20Report_Final.pdf

3 – James, John T. (September 2013). A New, Evidence-based Estimate of Patient Harms Associated with Hospital Care. Journal of patient Safety. Volume 9, No. 3. Retrieved from http://journals.lww.com/journalpatientsafety/Fulltext/2013/09000/A_New_Evidence_Based_Estimate_of_Patient_Harms.2.aspx

4 – Hing, Esther and Hsiao, Chun-Ju. (May 2014) State Variability in Supply of Office-based Primary Care Providers: United States, 2012. NCHS Data Brief, No. 151. Retrieved from http://www.cdc.gov/nchs/data/databriefs/db151.htm

5 – Medical Liability Monitor’s Annual Rate Survey, 2014.

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