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What "Caps on Damages" Means to Real People

The "Tort Reform" movement often tries to limit the recovery of injured people by putting "caps on damages." Texas is full of "tort reformers," and thus a good example of what unintended consequences happen when caps on "pain and suffering" are passed. Back in 2003, the citizens of Texas were told by the insurance industry and the state Chamber of Commerce that "frivolous lawsuits" supposedly threatened their access to healthcare. Doctors and hospitals were going to go out of business if something wasn't done to stop all the lawsuits, and the only way to do that was to get rid of consumer protections in their state Constitution. Proposition 12 was proposed and passed as the solution to this so-called crisis. It changed the law in Texas and put a $250,000 cap on non-economic damages, or "pain and suffering," in medical malpractice cases. It sounded reasonable to the voters. That is, until malpractice happened to them.

Suddenly, real people who suffered real tragedies couldn't get help. Families who lost a child or an elderly parent to an obvious medical mistake couldn't find an attorney willing to represent them. How could this be? What the good people of Texas didn't understand was that the whole purpose of the law wasn't to limit "frivolous lawsuits." It was intended to make certain legitimate lawsuits economically impossible to pursue.

For example, there is nothing more devastating than the loss of a child. Likewise, the untimely loss of an elderly parent from malpractice is tragic. However, wrongful death damages, such as the death of a child or grandparent, are non-economic in nature. Thus, the new cap in Texas applies. The real intent behind Proposition 12 was to change the law so that it does not make business sense to pursue such cases. Here's why. Most elderly folks are retired and children don't work. Since there's no income, there are no economic losses that apply, or if there are, they are minimal. Therefore, the only damages are "pain and suffering," which are limited to the $250,000 artificial cap.

People say, "But $250,000 is still something worth fighting for." Sadly, medical malpractice cases are defended on a "scorched earth" basis. They are not settled quickly. Rather, they drag on for four or five years and are extremely expensive. For example, the costs to bring a case, including medical experts and exhibits for trial, can easily be over $50,000. And these don't include attorney fees, just the costs to prove the case. The victim's attorney only gets paid if they win, usually a contingent fee of 40%. All of this comes out of the capped damages of $250,000. In other words, it is just not worth the risk, or the family or attorney's time to pursue. Mission accomplished for the forces behind Proposition 12.

Oh, and did Proposition 12 increase the number of doctors in Texas? According to the Texas Observer, there has been no change to the number of physicians serving the citizens of Texas, especially in rural areas. In other words, the people of Texas gave up a Constitutional right to hold negligent medical providers accountable for any harm caused them, and received nothing in return.

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