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"I consider trial by jury as the only anchor yet devised by man, by which a government can be held to the principles of its constitution."
- Thomas Jefferson
"He has combined with others to subject us to a jurisdiction foreign to our constitution, and unacknowledged by our laws; giving his Assent to their
Acts of pretended Legislation: For depriving us in many cases, of the benefits of Trial by Jury."
- Grieveances stated against King George III in The Declaration of Independence
"The fight over jury rights was, in reality, the fight for American independence."
- Roscoe Pound, The Development of Constitutional Guarantees of Liberty (1967)
"The founders considered the right of trial by jury in civil cases an important bulwark against tyranny and corruption, a safeguard too precious to
be left to the whim of the sovereign. Juries represent laymen's common sense and keep the administration of law in accord with the feelings of the
community."
- William H. Rehnquist, late Chief Justice, U.S. Supreme Court
I. Attacks On the Right To Civil Jury Trial In Texas
Both the United States Constitution and the Texas Constitution guarantee the right to trial by jury in civil cases in Texas. The right to a jury trial in civil cases in
our state and our nation is under the most relentless attack since the founding of the Republic. Those attacking it are politicians, legislators, and appellate judges
who share a philosophy that although Texas juries are competent to decide death penalty cases, juries are not to be trusted with the power to award money
damages in civil cases.
The Texas legislature and the appellate courts have written a series of laws and cases that weaken our right to a jury trial. See Juries Under Siege, 30 ST.
MARY'S LAW JOURNAL 1 (1998) by Chief Justice Phil Hardberger of the San Antonio Court of Appeals. They have, among other things, limited the damages
juries can award regardless of the injuries suffered, severely reduced the amount of punitive damages that can be awarded regardless of the wrongful conduct,
taken away causes of action, made it much more difficult for experts to testify, invaded the province of fact-finding which is reserved solely to the jury by the
7th Amendment to the United States Constitution, limited the lawyer's rights to question potential jurors in jury selection, removed protections against biased
jurors being selected for the jury, required the jury to answer more questions to find for the plaintiff, and shortened the time in which suits can be brought.
Now, in perhaps the most disturbing of all these developments, some recent appellate decisions have reversed cases won by plaintiffs on errors to which the
defense lawyers never objected.
In short, our most precious civil liberty, the right to a fair and unbiased jury trial, is being intentionally destroyed. Tyler & Das is committed to maintaining the
right to an unbiased jury trial in civil cases for all Texas citizens and will challenge the constitutionality of these attacks on our right to a jury trial at every
possible opportunity.
II. Texas Tort Reform: $250,000 Limitation For
Non-Economic Damages In Texas Medical Malpractice Cases
One of the most severe attacks on our right to a jury trial is an arbitrary limitation on the amount of damages a jury can award. The Texas insurance industry
and its lobbyists in Austin recently succeeded in achieving the most sweeping reform in medical malpractice cases in Texas history. Among other provisions, the
new law limits non-economic damages in medical malpractice cases to only $250,000, regardless of the injury inflicted on the victim. This limit is all that a
plaintiff can recover for mental anguish, physical disfigurement, physical impairment, loss of earning capacity, and loss of consortium (loss of love,
companionship, and other elements of a husband-wife or a parent-child relationship when a family member is injured) combined. The cruel injustice of such
limits on damages is illustrated by the true story given below.
III. "Crushed by My Own Reform"
By Frank Cornelius, New York Times, October 7, 1994.
About the Author: Frank Cornelius was a former insurance company lobbyist whose clients included the Insurance Institute of Indiana. He passed away in
1995. He was 49 years old, and a victim of medical negligence.
In 1975, I helped persuade the Indiana Legislature to pass what was acclaimed as a pioneering reform of the medical malpractice laws: a $500,000 cap on
damage awards, and elimination of all damages for pain and suffering. I argued successfully that such limits would reduce health care costs and encourage
physicians to stay in Indiana, the same sort of arguments that now underpin the medical industry's call for national malpractice reform.
Today, from my wheelchair, I rue that accomplishment. Here is my story.
On Feb. 22, 1989, I underwent routine arthroscopic surgery after injuring my left knee in a fall. The day I left the hospital, I experienced a great deal of pain and
called the surgeon several times. He called back the next day and told my wife to get me a bedpan. He then left on a skiing trip. I sought out another surgeon,
who immediately diagnosed my condition as reflex sympathetic dystrophy, a degenerative nervous disorder brought on by trauma or infection, often during
surgery.
A few months later, when a physical therapist improperly read the instructions on a medical device, I received a tremendous current of electricity through my
left leg. This seriously complicated my condition.
In August 1990, another physician proposed a medical procedure, but used the wrong instrument; that left me with several holes in the vena cava, the main vein
from the legs to the heart. I would have bled to death in my room if my wife had not come to see me that evening and called for help. As another physician tried
to save my life, he punctured my left lung.
The cost of this cascading series of medical debacles is painful to tally:
I am confined to a wheelchair and need a respirator to keep breathing. I have not been able to work.
I have continuous physical pain in my legs and feet, prompting my doctor to hook me up to an apparatus that drips morphine. My pain used to rate a 10 on a
scale of 1 to 10. Now it's about a 4.
Twice, I have received last rites from my church.
My marriage is ending, and the emotional fallout on our five children has been difficult to witness, to say the least.
At the age of 49, I am told that I have less than two years to live.
My medical expenses and lost wages, projected to retirement age if I should live that long, come to more than $5 million. Claims against the hospital and physical
therapist have been settled for a total of $500,000, the limit on damages for a single incident of malpractice. The Legislature has since raised that cap to
$750,000, and I may be able to collect some extra damages if I can sue those responsible for the August 1990 incident that nearly killed me. But apparently
because of bureaucratic inertia, the state medical review panel that certifies such claims has yet to act on mine.
The kicker, of course, is that I fought to enact the very law that limits my compensation.
All my suffering might have been worthwhile, on some cosmic scale, if the law had accomplished its stated purpose. But it hasn't.
Indiana's health care costs increased 139.4 percent from 1980 to 1990, just about the national average. The state ranked 32d in per capita health care spending in
1990, the same as in 1980.
It's understandable that the damage cap has done nothing to curb health care spending; the two have almost nothing to do with each other. In 1992, the
Congressional Budget Office reported that medical malpractice litigation accounted for less than 1 percent of total health care spending. I doubt that the
percentage in Indiana is much different.
Proponents of Indiana's damage cap argue that doctors here pay less for malpractice insurance than their colleagues in other states. What they don't say is that
malpractice premiums are artificially low because insurers need to offer only $100,000 of coverage. Negligently injured patients who are entitled to more than
$100,000 must look to Indiana's state-run excess compensation fund.
Because that fund is supported by a surcharge on doctors, the true cost of malpractice insurance in Indiana can be calculated only by adding premiums and
surcharges together. And the surcharge for the compensation fund has ballooned.
Doctors and insurers have spent millions propagating the myth that America is awash in unjustified malpractice suits and crazy jury verdicts. And apparently
they have captured the attention of the President and Congress: malpractice damage caps were part of many health care measures in Congress this year, and
they are sure to be back when the issue resurfaces in the next session.
The prospect that these "reforms" will be enacted is frightening. Make no mistake, damage caps are arbitrary, wholly disregarding the nature of the injury and
the pain experienced by the plaintiff. They make it harder to seek and recover compensation for medical injuries; extend unwarranted special protection to the
medical industry; and remove the only effective deterrent to negligent medical care, since the medical profession has never done an effective job of disciplining
negligent doctors.
Medical negligence cannot be reduced simply by restricting consumers' legal rights. That will happen only when the medical industry begins to effectively police
its own. I don't expect to live to see that day.
Frank Cornelius decided to devote his remaining days towards trying to prevent other state legislatures from being duped into letting medical industry
wrongdoers off the hook. In February, 1995, Frank went to Des Moines, Iowa to deliver his heartfelt testimonial about the tragedy of medical malpractice to
members of the Iowa House and Senate Judiciary and Human Resources Committees. He gave compelling testimony abut how reducing the accountability
of medical wrong-doers only serves to compound the suffering of the injured. Tragically, Frank Cornelius passed away less than two weeks after his visit to
Iowa. He was never able to tell his story to the Texas Legislature before it passed its even more onerous legislation.
