Wendy Davis’ latest campaign ad was released on Friday. It opens by explaining that Republican Gubernatorial nominee Greg Abbott was disabled after a tree fell on him in 1984, before describing cases in which Abbott, as Attorney General, sided with the relatively powerful, rather than the victims of various acts of negligence. That sounds straightforward, but the ad was, to put it mildly, the source of some controversy. Texas Monthly‘s own Erica Grieder called it “mean-spirited,” while a breathless post on the otherwise-sympathetic-to-Davis lefty magazine Mother Jones insisted that what the ad is really about is “basically calling Abbott a cripple.” Abbott himself told the San Antonio Express-News that it was Davis’ choice “if she wants to attack a guy in a wheelchair.”
“Mean-spirited” might be fair; “basically calling Abbott a cripple” is a harder pill to swallow, but the ad certainly has its faults: In terms of its tone, the stark, black-and-white image of an empty wheelchair makes the circumstance of using one seem grim and menacing, and its lack of sympathy for Abbott’s legitimate personal tragedy feels uncompassionate. And, as Grieder points out, it’s not necessarily easy to connect the dots between Abbott’s case and the three examples that Davis singles out in the spot: a rape victim Abbott ruled against as a Texas Supreme Court justice as she sought to sue the vacuum-cleaner company who failed to perform a background check on the man it sent to her door, via a distributor; a motion that Abbott filed as Attorney General in support of the laws that shield a Texas hospital from lawsuits resulting from a “sociopath” doctor who practiced in their facilities; and an amputee that Abbott, as AG, argued wasn’t actually disabled because she had a prosthesis.
But while the ad may be off in some ways, questioning whether it’s fair to “attack a guy in a wheelchair” feels off, too. Abbott has been a champion of tort reform as policy for much of his career; as Attorney General, for example, he’s staunchly defended the 2003 tort reform law that capped payouts for noneconomic damages in medical malpractice cases at $250,000.
I’m very familiar with tort reform and the way it’s impacted Texans who suffer from negligence. In 2003 and 2004—the year after tort reform passed in the Texas Legislature—the woman I’d marry a few years later was left legally blind in her right eye after a series of seemingly routine eye surgeries to correct cataracts were botched by two different doctors. The first, a lens implant, was placed at the wrong strength, and excess lens material came into contact with the vitreous, which expanded and resulted in a white cloud in her field of vision, along with dangerously high levels of eye pressure. A second doctor, a retina specialist, performed a vitrectomy to correct the first one; this doctor ripped a hole through the macula in her right eye, and flooded her corneas—when this doctor removed the bandage from her eye the next day, they were both stunned to learn that her vision in her right eye was completely black. Once the cornea cleared, a third doctor, who told her he’d never seen such severe scar tissue as that caused by the doctor who ripped through her macula, performed another operation to attempt to repair the damage, a procedure that included inserting a gas bubble into her eye. Afterward, she had to remain face-down for two weeks while it healed. The cornea was healed, but the damage to the macula was severe. The rods and cones in her right eye were permanently damaged, leaving a massive hole in her field of vision that, barring some stunning breakthrough in medical science, can never be corrected. Not long after, she developed wet macular degeneration in her left eye—a very rare condition in someone under retirement age—which warps the vision in the affected eye, and which has to be constantly monitored to prevent it from progressing.
As a result of the botched surgery that left her legally blind in her right eye, she’s been forced to rely on one eye that is forever at risk of being made useless. She can’t pass a vision test to get a driver’s license, which limits the type of work she’s able to pursue. When we go to the movies, if there are subtitles, I need to whisper what they say in her ear. There are other people whose disabilities are more severe, obviously, and she does all right—she uses public transportation, listens to a lot of podcasts, and reads on a Kindle, where she can control the size of the text. But ten years later, it’s impossible to know how different her life—our lives—would be if she hadn’t had the operation.
Or if she’d been able to sue. But tort reform rendered that all but impossible: When she began talking to lawyers, she learned that, because of the cap on non-economic damages that passed shortly before her operations, she wouldn’t be able to find one who would take the case. $250,000 seems like a lot of money, but by the time the out-of-state specialists are paid (it’s almost impossible to get retina specialists in Texas to testify against one another) and the research is done, there’s not enough left to get a lawyer interested. (Economic damages that she may have suffered because of the limitations on her ability to find work that required her to be able to drive would have been very difficult to prove—at the time of the surgeries, she was 23 years old and worked at a bookstore, so convincing a jury of the specific jobs she would be unable to pursue as she began her professional career would be a very tall order.)
So when I watched Wendy Davis’ new ad—called “Justice”—with my wife, her reaction wasn’t “that seems mean.” It was more like, “finally, someone is talking about this.”
The 2003 tort reform has resulted in fewer medical malpractice suits being filed, and may have done some good for the people of Texas, although any systemic benefits are a bit tricky to measure because tort reform wasn’t the only change to have happened in Texas in the past decade. Supporters of the law, for example, argued that capping noneconomic damages would lower malpractice insurance premiums, and thereby help attract doctors to the state of Texas. Several subsequent studies have questioned that: there are more doctors practicing in Texas than there were ten years ago, but the state’s population has grown by several million people since then. And Abbott has pointed out, fairly, that someone who suffered an accident like the one that left him disabled could still sue, and receive a similar award.
That can be technically true, but there’s a question of whether they actually would: the same financial incentive that makes Texas attractive to doctors looking for lower insurance premiums is a financial disincentive to talented trial lawyers who might be able to take, argue, and win cases like Abbott’s. As my wife learned, it’s not so much “Is the case technically winnable” as it is “Can you find a lawyer who will take it in the first place?”
In her case, the answer was “no.” And trial lawyers are the gatekeepers to the type of justice that Davis named her ad after.
So, while the average payout awarded in medical malpractice cases in 2011 was about $200,000, that average only reflects those cases that are actually taken by a lawyer. It’s impossible to know how many cases that would have been pursued prior to 2003 ended up languishing because a lawyer wouldn’t take them, but it’s safe to say that factoring those into that average payout would drop the number significantly.
When I asked my wife if she would be comfortable with me writing about her experiences after we saw the ad, her first question was, “Can you name the doctors who did it?” The answer there is no, obviously, but her question spoke to the most frustrating part of the experience for her. It’s not the money, it’s the fact that there is no way for these people who changed her life, and made it forever more difficult, to face consequences for what they did. That’s tort reform, too: “Look at all the doctors it brought to the state! Sorry about your eye!”
And that’s the common thread between the cases that Davis links in her controversial 30-second “Justice” spot, as well. Whether you’re talking tort reform or the other figures in the ad—the rape victim, the patients of Dr. Duntsch in Dallas, or the amputee—there are examples of Abbott working throughout his career to make it more difficult for Texans to enforce consequences on the powerful people who do them harm.
For Texans like my wife, Davis’s point that Abbott himself continues to receive a six-figure yearly income because such settlements were easier to procure before he played an active role in changing the state’s liability climate doesn’t look much like “attacking a guy in a wheelchair.” And, though it may not have been well perfectly executed, calling out the disparity between his own life and the lives of the people whose lives were changed by negligence after 2003 doesn’t feel too far off from “Justice.”