Texans facing referendum on legality of lawsuit cap

Media blitzes by physicians and trial lawyers are under way.

By Tanya Albert, amednews staff. Sept. 15, 2003.

Family physician Evelyn Tobias-Merrill, MD, stands in front of a waiting room, arms crossed, calmly stating how she's never been sued but had to give up practicing medicine because her liability insurance rate tripled.

As the waiting room gets more crowded, she warns: "More doctors will be lost if we don't fix the medical lawsuit crisis in Texas. Then who will be left to care for our families?"

The scene is fictitious, but her story is real. Dr. Tobias-Merrill is the star of a television advertisement -- one of many in high-stakes media campaigns to influence the outcome of a referendum on whether Texas' new medical malpractice award cap is constitutional. The ballot question is known as Proposition 12.

As the ad continues, Antonio Falcon, MD, a Rio Grande City family physician, comes on screen: "Yes on 12," he says. "Vote 'yes' for affordable health care."

The opposing side has also hit the airwaves.

One of its TV ads begins with images of Texas settlers sitting around a table, dipping a quill in a jar of ink and writing the state constitution by candlelight. "Our Texas constitution guarantees each citizen access to our courts, judges and juries," a voice-over says.

Outside, a black Lincoln pulls up with Texas license plate reading "HMO INS." A hefty businessman in a dark suit exits the car, strides into the wooden house and pulls out a pen. As the man starts writing on the constitution, a voice-over says: "Insurance lobbyists want to rewrite our constitution to limit our courts and protect their special interests. Vote 'no' on Proposition 12 and save Texas courts."

The two camps are expected to spend more than $10 million on television and radio ads and direct mailings to homes before the Sept. 13 vote. If passed, the ballot initiative would make a noneconomic damages cap in medical malpractice and all other civil justice cases constitutional -- avoiding a long court fight to settle the question.

Texas' liability reform law, passed earlier this year, put a $750,000 cap on noneconomic damages in medical malpractice lawsuits, but limited individual physicians' portion to $250,000. The goal is to ease medical liability insurance availability and affordability problems that have caused some physicians to retire early, eliminate high-risk procedures or move out of state.

Texas lawmakers also simultaneously called for Proposition 12 to go before voters because they knew that the law would face a legal challenge and could potentially be wiped off the books if the court held that the reform was unconstitutional. The Texas Supreme Court found that damage caps passed in 1977 were not legal under the state's constitution.

Although the new law, which took effect Sept. 1, caps damages only in medical malpractice cases, the ballot initiative asks voters to deem constitutional any future caps that lawmakers pass.

Yes on 12 for access to care

Behind the media blitz in favor of the damages cap is "Yes on 12!" -- a committee that includes Gov. Rick Perry and organizations representing physicians, nurses, hospitals, businesses and others. In addition to the group's efforts, physicians in Texas have been getting word out to their patients on a one-on-one basis.

Doug Curran, MD, a family physician in Athens, said his office staff has been handing out information to patients and wearing buttons supporting a "yes" vote.

"If this doesn't pass, I'm concerned that the community will continue to see people giving up high-risk procedures," said Dr. Curran, who has practiced for 24 years. "I've continued to do obstetrics, and I don't want to give that up."

The Texas Medical Assn. has been giving physicians campaign materials, including yard signs, bumper stickers, posters and 1.8 million cards that say, "Don't forget your appointment to vote on Sept. 13," which they can then hand out to patients. The TMA has raised more than $1 million to contribute to the "Yes on 12!" media effort.

"Doctors in Texas are politically astute," TMA spokesman Steve Levine said. "Hopefully, that is going to make the difference."

Only about 10% of voters are expected to turn out for the special election. To try to get people to vote, "Yes on 12!" is holding rallies at hospitals, courthouses and other public places.

"The core message is that frivolous lawsuits and the resulting increases in medical liability premiums jeopardize patient access to affordable health care in Texas," said Ray Sullivan, the group's spokesman.

No on 12 for access to courts

But those rallying against the measure say it's dangerous to look at the issue narrowly.

"Texans Against Proposition 12" and "Save Texas Courts" are telling voters that they should punch "no" on the referendum so they don't give away constitutional rights that allow them access to the court system.

"This proposition would move Texas so far out of the mainstream of American justice that we would literally be the laughingstock of the nation," said Dan Lambe, executive director of Texas Watch, one of the groups that is part of Texans Against Proposition 12. "It lets special interests rewrite the constitution."

The AARP, AFL-CIO, the Texas American Civil Liberties Union, Mothers Against Drunk Driving, the Texas NAACP, and the Texas League of United Latin American Citizens are among the groups that have joined Texans Against Proposition 12.

The organization is spreading its message at the grassroots level using direct mail, e-mail, phone banks and speeches at events around the state. Meanwhile, "Save Texas Courts," a group of judges and lawyers, is reaching voters through direct marketing and television and radio ads.

A jury should have the right to decide what it feels is appropriate to award to a given plaintiff and should not be restricted by laws that the Legislature passes, said Jennifer Ring, spokeswoman for Save Texas Courts.

If the measure passes, "it will be taking the power that belongs to juries and giving it to legislators who are not without ambition and who are without protection from special interests," she said.

"We support doctors. It's not fair for insurance companies to punish them for a few negligent doctors out there," Ring added. "But what we don't support is taking away a jury's decision in civil actions."