Texas vote tests a new tactic to curb jury awards

The strategy: Change the state constitution to make a cap on medical-malpractice damages stick.

Supporters say it will help keep healthcare affordable and accessible. Opponents say it will strip power from the courts and diminish the legal recourse of people harmed by medical malpractice.

On Saturday, Texans will have to weigh those competing messages when they vote on a proposed amendment to the state constitution, which would allow the legislature to cap noneconomic damages in medical malpractice cases at $750,000.

If it passes, Texas will be the first state in the nation to rewrite its constitution to limit those damages, which relate to a victim's pain and suffering. Economic damages - the tangible toll of an injury on one's life - would continue to be awarded without limit.

The measure has arisen at a time of growing nationwide concern over rising healthcare costs - and debate over whether medical malpractice insurance is a key to the problem.

Saturday's vote here comes after 21 states have capped noneconomic damages, often to see the laws overturned on constitutional grounds. The Texas proposition is being closely watched nationwide as a sign of whether legal reformers can use this tactic to make such caps stick in other states.

In effect, the Texas proposition would ensure that caps already enacted by the legislature in 2003 will withstand court challenges.

The move is paralleled in the US Congress, as Senate Republicans gear up for a similar fight over limiting medical-malpractice damage awards. Democrats already blocked one such effort this year.

Because the issue is so complex and the stakes are high, it has been the subject of intense campaigning - and the outcome will depend largely on which side made the better sales job. "In polls, if you phrase the question, 'Do you think jury awards are out of control?' people will answer 'Yes.' If you phrase the question, 'Should corporations be able to injure people and get away with it?' people will answer 'No,' " says David Bernstein, a tort-reform expert at George Mason University in Arlington, Va.

Already, the proposal has attracted larger-than-normal turnout here, in a state where early voting is allowed.

Proponents claim that personal-injury lawyers are fighting its passage because they are the biggest beneficiaries of excessive jury awards. Opponents claim insurance-company lobbyists are scaring voters into believing that soaring medical-liability costs are causing doctors to limit their practices.

On that point, the US General Accounting Office released a study last week finding that rising insurance costs for physicians are not causing widespread denial of care.

Moreover, even a cap on noneconomic damages doesn't mean insurance rates will stop rising, the study found. California, for instance, saw double-digit malpractice insurance-rate increases from 1999 to 2002, a year after the legislature capped noneconomic damages in medical malpractice cases at $250,000. What finally brought relief was insurance reform and a rate rebate, says Deborah Hankinson, a former Texas Supreme Court justice and head of Save Texas Courts, which opposes the measure.

She believes it will take those kinds of solutions, not cutting off a person's right to a court remedy, to lower malpractice insurance-rates in Texas.

The impact of the measure could go well beyond healthcare. It would allow the legislature to limit damages in other civil cases after Jan. 1, 2005.

Mike Hotra of the American Tort Reform Association in Washington says Texas' attempt to change its constitution is radical, but shows just how important the issue is becoming. "This is new, but it's largely in response to a litigious strategy employed by trial lawyers at least 90 times. They use state constitutions to have civil justice reforms declared unconstitutional, and it succeeds only on the thinnest of legal reasoning," he says.

Some 40 states have "open court" provisions in their constitutions that allow for remedy by trial, and it is on this basis that caps on damages have been struck down.

Whatever the outcome, the issue is sure to persist. States are eager to attract businesses, for whom the cost of healthcare - and liability - are big concerns.