New study criticizes tort reform in Texas, incites strong rebuke

The “gatekeepers” to civil justice system, plaintiff attorneys, are losing incentive to practice because of tort reform, according to a new study – a report furnished by, in the opinion of one man, two “left wing academics who never met a lawsuit they didn’t like.”

On June 2 the American Bar Foundation sent out a press release promoting a new book: Tort Reform, Plaintiffs’ Lawyers, and Access to Justice, essentially a study examining more than 20 years of “tort reform activity” in Texas and the politics behind the tort reform agenda.

Crafted by ABF professors Stephen Daniels and Joanne Martin, the book claims tort reformers employ a key strategy – an unrelenting attack on plaintiffs’ lawyers as the alleged cause of many problems that tort reform will solve, like diminished economic prosperity, disappearing jobs or shortages of physicians.

Daniels and Martin claim the success of public relations campaigns waged by tort reformers have created a decidedly hostile environment in Texas, prompting gatekeeping-plaintiff attorneys, who work off a contingency fee basis, to re-examine the kinds of cases they take on, which ultimately diminishes citizen access to the courts.

However, the American Tort Reform Association has long argued tort reform doesn’t restrict access to the courts, but instead seeks to curb abuse by weeding out frivolous lawsuits.

Darren McKinney, director of communications for ATRA, believes it’s the “height of arrogance” to call plaintiff attorneys gatekeepers, calling Daniels and Martin “left wing academics who never met a lawsuit they didn’t like.”

“They have every right to their bias, just like I do to mine,” McKinney said. “Kind of crazy to suggest all trial lawyers are saints and all tort reformers are devils.”

McKinney says groups like ATRA were formed to counteract civil justice abuse, such as lawsuits blaming doctors for failing to “miraculously” save the life of an obese smoker who died from a stroke.

“It’s madness that such cases are actually brought,” McKinney said. “Plaintiff lawyers suing for millions of dollars because the doctor gave that patient stroke pill A instead of B.”

The study found that after the Texas Legislature passed a $250,000 cap on non-economic damages in medical malpractice cases in 2003, med-mal claims became much less attractive to plaintiff attorneys.

“The reason is simple – with limited damages it became more problematic to balance the risk and the cost involved in these cases given that the lawyer pays all of the costs involved in preparing such a case,” the book press release states. “If the lawyer is not successful, there is no fee and no recoup of what will be a substantial monetary investment.”

Jon Opelt, executive director for Texas Alliance for Patient Access, says Texas’ 2003 reforms struck a delicate balance, affording patients the right to receive reasonable compensation, while conscientious enabling doctors to find and afford liability coverage.

“Protecting access to care while preserving access to the courts is, and always has been, a delicate balance,” Opelt said. “Because some people received unlimited court awards, the rest of us were left with limited health care.”

Opelt says liability crisis, such as the one Texas faced from 2000-2003, tend to hurt rural counties the most, as rural communities have the most difficulty attracting, let alone keeping, physicians.

“The Texas cap stopped the exodus of doctors from our state and from the ER,” Opelt said. “It has served as a powerful magnet attracting quality doctors to our state.”

While the med-mal cap may have enticed more doctors to relocate to the Lone Star state, the study cites Texas tort reform measures as the force pushing some trial lawyers toward insolvency – a finding that has McKinney singing “Hallelujah.”

“For every trial lawyer who closes his office, a doctor’s office opens,” McKinney said. “No one I know has any reasonable objections to a plaintiffs lawyer making money, but many of them have enriched themselves through fraud. Like any other system, the civil system can be gammed and corrupted. Tort reform lessens the prospect of a trial lawyer getting rich beyond his wildest dreams.”

Twenty years ago, Texas was deemed the “lawsuit capitol of the world.”

Over the past two decades, the length of Daniel and Martin’s study, Texas has shed the label and become a “civil justice model for the nation,” says Sherry Sylvester, a spokesperson for Texans for Lawsuit Reform.

“Today, Texas is a civil justice model for the nation, and lawsuit reform plays a pivotal role in keeping the Texas economy strong,” Sylvester said.

“Recently retired Dallas Fed Chairman, Richard Fisher, credited tort reform with helping make Texas the job creator for the entire country. A fair, honest and predictable civil justice system has helped assure increased business expansion and innovation in Texas and restored public trust in our courts.”

When researching their book, Daniels and Martin focused chiefly on the plaintiff attorney’s point of view, interviewing more than 150 Texas trial lawyers, according to their press release.

Sylvester believes the ABF professors fail to take into account the true goal of tort reform in Texas – assuring courts are balanced and fair for both plaintiffs and defendants.

“This so-called ‘study” ignores that reality,” Sylvester said. “It is based on interviews with personal injury trial lawyers who lament the reduction of needless litigation. They have a vested interest in defeating tort reform and are organized to advocate rolling back reforms, increasing lawsuits and expanding opportunities to sue.”