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The insurers already have all the relief they are entitled to. The insurers are once again trying to fatten their pockets at the expense of trial by jury and by threatening doctors with withdrawing their coverage. Medical malpractice suits are very hard to win--always have been. The problem with Proposition 12 is that it will NOT reduce frivolous lawsuits of any kind and it allows legislative bodies to decide whether you can have a trial on many other types of cases.
The following is a well-written essay by a well-respected big insurance DEFENSE lawyer in Texas.
PROPOSITION 12: VOTE NO
By Finis E. Cowan, Jr.
On September 13, Texans will be asked to approve more than 20 amendments to our Texas Constitution. Many are minor changes that most wont even notice. One allows cities to donate equipment to volunteer firefighters; another allows educators to be paid for serving on water districts. But hidden in among the innocuous propositions is a radical, special interest rewrite of our Texas Constitution: Proposition 12.
A logical question is: Why have the legislators placed it on the ballot in such a deceptive fashion?
Couched in innocent terms to appear like tort reform; in fact Prop. 12 is a dangerous assault on the traditional roles of our courts, judges, and juries. Disguised as a system of caps on medical malpractice cases, in fact, Prop. 12 does nothing legitimate to stop frivolous lawsuits. Instead, it puts politicians in charge of deciding civil cases, instead of judges and juries. It destroys vital legal rights of every family and citizen in Texas, radically altering the careful system of checks and balances designed by our Constitutions framers.
As a lifelong lawyer who believes in our Constitution and in a citizens right to court access, I strongly urge all voters to vote NO to Prop. 12.
The framers of the Texas Constitution drafted a document and a Bill of Rights which balanced the three branches of government, ensuring that no one branch is too powerful and guaranteeing citizens a voice for justice with the rule of law in our courts, judges and juries.
Imagine the dismay framers of our Constitution would express at the spectre of partisan politicians (heavily influenced by various special interests) making decisions which for more than 150 years have been reserved for our courts. The legislature is the last body we should authorize to take the place of courts, judges, and juries.
But Prop. 12 gets worse.
Its most offensive provision is hidden by three words, allowing the Legislature to impose caps on health-related cases and other actions. Prop. 12 masquerades as a medical malpractice reform but the words and other actions allow the Legislature to restrict what judges and juries can do to hold any wrongdoer responsible for his actions: drunk drivers, polluters, manufacturers of dangerous drugs, negligent makers of unsafe tires, exploding gas tanks or corporate criminals who have robbed their corporations and destroyed the life savings of their pensioners and employees.
This wording reaches far beyond the stated intent of the proposition. Clearly Prop. 12 is not medical malpractice reform but an amendment designed by special interests who have reasons for desiring to restrict access to courts and juries.
Almost 100 years ago Justice Moody of the Untied States Supreme Court said:
The right to sue and defend in the courts is the alternative of force. In an organized society it is the right conservative of all other rights, and lies at the foundation of orderly government. It is one of the highest and most essential privileges of citizenship.
Chambers v. Baltimore & Ohio Ry., 207 U.S. 142 (1907)
The proposed Constitutional amendment is part of an organized, determined and so far partially successful effort to limit this essential privilege.
I am reliably advised that no other State has ever enacted into law a voter-approved constitutional amendment that would so fundamentally alter the role of our courts.
I am not alone. A number of eminent scholars and former judges have determined to join in the attempt to persuade voters to defeat this effort.
We can be certain that if this overreaching effort is successful, various special interests will be back very soon with even more radical proposals to limit or destroy the essential right which Justice Moody described in 1907 and which is one of the main foundations of the Constitutional system which protects the rule of law in our State and Nation.
He adds:
In matters of style, swim with the current; in matters of principle, stand like a rock. (Thomas Jefferson)
The framers of the Texas Constitution deliberately drafted the open courts provision not too different from our nations document that states, all courts shall be open and that every person who has suffered some sort of injury shall have remedy by due course of law.
We have managed to live by the principle for more than 150 years. Granting those who have been wronged a course to pursue justice is a right we hold very dear.
The facts is, all businesses have good and bad times, but we shouldnt change our Constitution just to help one special interest. If the premise for the legislation is to address a medical malpractice crisis, the best tort reform should change Texas laws to force the small percentage of repeatedly negligent health care providers to be more accountable for their actions.
Legislators are indeed lawmakers, and the best laws should protect doctors and Texas patients before they are injured, by making sure that the small minority of repeatedly negligent health care providers are put out of business.
Home and car owners have seen this same type of crisis before. Prop. 12 is just another example of a special interest industry seeking to protect their profits.
On Saturday, Sept. 13, we the people are the last check and balance in Texas government. Stand like a rock against the special interests proposed re-write of our Texas Constitution and vote Against Prop. 12.
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