Shortly after the publication of senior editor Mimi Swartz’s article on the effect of tort reform in Texas (“ Hurt? Injured? Need a Lawyer? Too Bad!” November 2005), TEXAS MONTHLY received a letter from Texans for Lawsuit Reform ( TLR) alleging that the article contained numerous mistakes of fact and law. We agreed to address TLR’s concerns, promised that we would acknowledge and apologize for any errors in the story, and vowed to defend ourselves vigorously when we believed that TLR’s accusations lacked merit. Although we provided TLR with an unprecedented amount of space in which to publish its criticisms in the January 2006 issue, TLR eventually chose not to repeat its claims of error but rather used the space to tout its achievements. In the meantime, TLR widely disseminated its criticism of Swartz’s article and posted the letter containing its accusations on its Web site. The document that appears below is the original letter TEXAS MONTHLY received from TLR, interspersed with TEXAS MONTHLY’s responses to each charge, in italics, including our apology in the two instances where we erred, and a refutation of TLR’s charges in all other instances.
In its November issue, TEXAS MONTHLY published an article by Mimi Swartz entitled “Hurt? Injured? Need a Lawyer? Too Bad!” The thesis of the article is that Texans for Lawsuit Reform has single-handedly manipulated Texas’s tort system to deprive injured Texans of their day in court. That thesis is neither accurate nor justified. TLR, its leadership and its 13,700 members, share a genuine concern and have real sympathy for those who have been injured by another person’s or company’s wrongful actions. TLR has no interest in a civil justice system that deprives these individuals of fair compensation for the wrongs done to them. TLR’s only goal, since its inception, has been to help Texas achieve a civil justice system that is efficient and fair to all litigants.
Ms. Swartz’s article, unfortunately, is clearly intended to support her thesis rather than to present an unbiased discussion about the Texas civil justice system. The article is misleading, inaccurate, and, in many respects, entirely incorrect in its statements of fact and law. The purpose of this memorandum is to summarize the most notable errors and omissions in the article, both legal and factual. Due to the pervasiveness of these inaccuracies and the obvious bias of the author, we formally request that TEXAS MONTHLY issue a complete correction of the erroneous and misleading statements.
TEXAS MONTHLY responds: Far from displaying bias, executive editor Mimi Swartz, a National Magazine Award–winning writer and reporter, devotes considerable space to letting the members of TLR present their story in their own words. For example, co-founder Richard Trabulsi is quoted as saying, “We’re looking for fairness, balance, and restoration of litigation to its appropriate role in society.” Swartz ends this section of the story with a statement that reflects her approach to the story: “In the battle between the trial lawyers and tort reformers, each side accuses the other of excessive greed and infinite mendacity; each side is convinced that only its side represents the truth. The middle ground is reserved for the all-too-human collateral damage of a bitter war involving big money and partisan politics, seemingly without end.” This balanced statement reflects the main focus of Swartz’s article, which is neither tort reform nor the tort reformers but the impact that tort reform has had on ordinary people who have suffered injury and loss: In many circumstances, several of which she describes, it has effectively closed the courts to victims.
In the following point-by-point discussion, the reader will come across many assertions by TLR that Swartz’s description of the law or the facts is misleading or incomplete. While we will deal with these in turn, we would simply make the obvious point here that “Hurt? Injured? Need a Lawyer? Too Bad!” is a work of journalism, not a legal treatise. It paints with a brush that is broad but not flawed. Many of Swartz’s examples are carefully couched in terms of what can happen to an injured person seeking redress, depending on the facts of the case—not what will happen to every litigant. There are many other instances in which TLR’s claim of a mistake by Swartz and TEXAS MONTHLY is nothing more than a matter of differing interpretations. Regrettably, there are two instances, one involving the law and another involving factual material, where errors appear. We acknowledge and apologize for these errors here and will do so again in our response to TLR’s specific allegations.
Ms. Swartz is Wrong in Her Statements of Law
1. The article misstates the effect of caps on noneconomic damages in medical malpractice cases.
A significant segment of the article is about a retired worker named Alvin Berry, whose doctor allegedly failed to diagnose his cancer in a reasonably timely manner. In discussing the effect of the caps on noneconomic damages in House Bill 4, Ms. Swartz states on page 167: “… and if he won the case, Alvin would take home substantially less than the maximum of $250,000 the state of Texas had decided an injury like his could be worth.” Using a different example to make the same point about the caps, Ms. Swartz states on page 168: “If your child is blinded at birth because of medical malpractice, there is a good chance that her only remedy is to receive a few hundred dollars a month for the rest of her life.” These statements are divorced from reality.
By enacting HB 4, the Texas Legislature has not made a determination that an injury like Alvin’s could only be worth a maximum of $250,000, nor does the bill contain anything that would limit a blinded baby’s recovery to a few hundred dollars a month. Rather, the caps in HB 4 apply only to noneconomic damages, which are inherently subjective and often speculative, and those caps can go as high as $750,000 when three or more defendants