[ Wednesday, September 03, 2003 ]


Texas Proposition 12:

I was just at Medical City Hospital in Dallas and posted just above the elevator call buttons were stickers and posters imploring readers to vote for Proposition 12 on September 13.

There's a big special election coming up in Texas to amend various parts of the Texas Constitution. As with most state constitutions, the Texas Constitution is a huge amalgamation of junk, totally unlike the US constitution, which is actually pretty bare-bones. So, there are a lot of things that the legislature ought to be able to take care of just by passing legislation, but that they really need a constitutional amendment to accomplish. Some of these really deserve public imput, but many just don't: for example, if a county rural fire district wants to donate its old, unused fire equipment to a nonprofit organization or an impoverished Mexican fire district, they need constitutional approval

One of the big items in this year's batch of constitutional amendments if Proposition 12: it allows the legislature to establish a cap on non-economic damages in certain tort cases. Particularly, the state legislature has passed a law to establish a cap of $250,000 per doctor, up to $500,000 per all doctors, and $500,000 per hospital, up to an overall total of $750,000 on non-economic damages. Actual economic damages (lost wages, lost earning potential) are not capped, but pain and suffering, loss of consortium, etc. are capped. However, this law as passed may be unconstitutional unless the Proposition 12 constitutional amendment is passed.

This looks like a fight between doctors (for Prop 12) and trial lawyers (against Prop 12), and that's a pretty fair representation of what it is. On the lawyers' side, juries ought to be able to decide how much pain and suffering is worth. And people should have access to the courts to determine how much they have been damaged.

However, giving an economic award (money) for a non-economic injury (pain and suffering) is unnatural, and it is not beyond the role of government to place rules on how and when, and under what circumstances, those awards are made. I don't see how letting an elected legislature set those limits is improper; we already have a tort claims limit for governmental hospitals that is well below the Prop 12 limits, and if it is OK for the legislature to limit damages from public hospitals, why not from private ones?

Secondly, there is some merit in the physicians' and hospitals' argument that runaway jury awards are running them out of business. There were 20 med mal insurance companies in Texas just a few years ago; now, there are 4. If they are really making money hand over fist, and just want to protect their obscene profits at the expense of the working man, then how come so many of them have run off?

I've always said it is important that physicians make high salaries. If they don't, nobody will become a doctor. Why become a doctor, spend 4 years post-graduate racking up $100,000 in student loans, then spend 2-10 years doing residencies and fellowships making $35,000 a year and working 80 hours a week, when after all that you only earn what you could've earned right off the bat with your MBA? If you're smart enough to go to medical school, you're smart enough to get your MBA or go to law school. Do you want all the smartest kids working for dot-coms and law firms, and the second-tier brains working as your doctor? I don't. There's a recent article in the Boston Globe on how medical school applications have steadily declined since 1997, but seem to be rebounding. This tracks with the dot-com boom, and bust: smart kids weren't going to medical school because there was better money elsewhere.

I'd have more sympathy for the lawyers' side of the argument if they weren't so over-the-top in their rhetoric. This isn't about "HMO lobbyists and special interests" writing the laws of the state (hey, aren't trial lawyers, especially those who contribute $250,000 apeice to the propoganda machine to fight Prop 12, "special interests"?), and it isn't about denying people the right to a trial by jury. And saying it is taking power away from the courts and giving it to lobbyists is pretty silly, given Texas courts' reputation (remember the 60 Minutes' segment, "Is Justice for Sale in Texas?" should we trust elected judges over elected legislators?).

Keep in mind that the Texas statute is based on the medical malpractice laws of that bastion of conservatism, California. Also note that recent studies have shown that doctors are leaving states without caps and moving to states with caps.

Jeff [10:49 AM]

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