By: Morgan Gaynor

In the 1990s and 2000s, pro-corporate state legislatures passed so-called “tort reform” measures. These measures were marketed as a way to curb what tort reform proponents called “frivolous lawsuits” and “jackpot justice.” In Florida, as in many other states, they were supposed to cure a “medical malpractice crisis” or “insurance crisis.”

A decade or more after this wave, the tide appears to be turning. State courts in Georgia, Illinois, New Hampshire, and Missouri have declared the measures unconstitutional because they take away a person’s fundamental right to a jury decision.

Florida courts have done so as well. In March 2014, the Florida Supreme Court found caps on damages in medical malpractice death cases to be unconstitutional. In doing so, it used some scathing language. The court said concerns about doctors fleeing the state were “completely undermined by authoritative government reports.” During the alleged malpractice crisis, the court drily noted, “the number of physicians in Florida were actually increasing, not decreasing.” It found the claim of a so-called crisis was “dubious and questionable at the very best.”

One state holding out is – you probably guessed it – Texas. So far the Lone Star State has clung to Proposition 12, a 2003 measure which caps certain types of damages and imposes other hefty legal restrictions. Prop 12 was pitched to the public with the same types of catchphrases used in other states: “lawsuit mecca,” “judicial hellhole,” and so on.

While Prop 12 is still the law, the justification for it is crumbling. Although the number of physicians per capita in Texas has increased by about 11 percent, this is no greater than the per capita increase nationwide. For example, New York has no medical malpractice damage caps, and it experienced the same 11-percent increase in physicians per person.

Prop 12 was supposed to decrease health care costs, but it hasn’t done that either. Health care costs in Texas are rising faster than the national average, and Texas is at the bottom of the list for quality of care. Texas rural areas are still medically underserved, probably because many physicians still choose to practice in cities where they can make more money.

When confronted with this, advocates for Prop 12 tried claiming reduction in health care costs was never really one of the goals. Unfortunately for them, flyers supporting Prop 12 from 2003 said it would provide “lower costs and more security in our health care system.” Former Governor Rick Perry, now a presidential candidate, said at the time that it would “make healthcare more affordable and accessible.”

The time has come to recognize that we were sold a bill of goods by corporate lobbyists. Tort reform slammed the courthouse doors on severely injured people, and the families of those killed, for benefits which never materialized. Courts nationwide have begun to recognize this, and the public should as well.

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