TLR vs. TM

Texans for Lawsuit Reform responds to our November 2005 article; we respond to the organization’s response.

January 2006

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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.

Introduction

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 are sued (which is not uncommon). Ms. Swartz, however, wholly fails to consider that HB 4 places no limit on the recovery of economic damages, including past and future medical expenses, expenses related to physical therapy and rehabilitation, expenses related to long-term nursing care, and expenses related to medication and necessary medical equipment, lost income, and lost future earning power resulting from the injuries.

Importantly, even plaintiffs who are unemployed at the time of the injury can recover lost future earning power resulting from the injuries, because lost future earning power is measured by the lost capacity to earn money and not the loss of actual earnings. Moreover, in the case of a child with serious and permanent injuries (such as blindness), courts have presumed that the child will have diminished earning capacity, and the fact finder is asked only to decide how much to award. Economic damages such as these can often run into the hundreds of thousands of dollars, or in some cases, millions. Ms. Swartz’s complete disregard of these types of damages in describing the likely outcome of Alvin’s case and the blind baby hypothetical is simply inexcusable and misleading.

TEXAS MONTHLY responds: TLR charges that Mimi Swartz errs not only by failing to mention the ability of a plaintiff to sue for economic damages but also by leaving the impression that economic damages are subject to the $250,000 cap. Neither charge is accurate. Concerning the scope of the cap, Swartz writes that Proposition 12 amended the state constitution “to limit noneconomic damages (usually pain and suffering) in medical malpractices cases to $250,000.” Concerning the ability to sue for economic damages, Swartz writes that “medical expenses are not subject to the cap.”

The statement about Alvin’s prospective damages is presented by Swartz as his lawyer’s appraisal of his case. Alvin’s situation and the hypothetical case of the blinded baby—as well as several other examples that TLR brings up later in their letter—are presented as illustrations of “what can happen to you in Texas today.” These illustrations are unquestionably true. TLR says it is possible Alvin might receive more money if he is awarded damages for lost earnings or medical expenses or if he should be able to sue three different defendants. But his lawyer’s estimate is more plausible than TLR’s, because of other facts made clear in the story: that he is a 73-year-old retiree and therefore unlikely to have much prospect of lost income and that only one doctor is responsible for his damages. TLR’s statement that Alvin might have been able to receive as much as $750,000 under the cap if there are three or more defendants is at best incomplete. If the three or more defendants are all doctors, the cap remains at $250,000 regardless of the number of doctors involved. In order for the maximum cap of $750,000 to apply, the lawsuit must involve at least one doctor and at least two hospitals. TLR’s claim that this is “not uncommon” is self-serving and contrary to the experience of litigators Swartz interviewed.

Regarding the blinded baby, HB 4 did two things that could limit a blinded baby’s recovery to “a few hundred dollars a month.” It placed the $250,000 cap on noneconomic damages, and it also allowed the trial judge to order jury awards to be paid periodically over a long term of years, with no adjustment for inflation, instead of in a single payment, as had been the law prior to HB 4. Finally, as TLR points out, lost earnings power is both subjective and speculative. Generally, victims who come from poor households do not recover nearly as much as victims from affluent households, and retired people may not recover anything at all. Ms. Swartz does not say categorically that a blinded baby will only receive a few hundred dollars a month. Rather, she says, “There is a good chance” this could happen. How much a blinded baby would receive is necessarily speculative; it could receive more. But there is little doubt it will receive far less now than it would have received before HB 4.

2. The article misstates the Good Samaritan law.

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