On September 13, 2003 (note: not during the general election in November) Texans will go to the polls to decide the fate of a constitutional amendment which will give the Texas Legislature the authority to set caps on non-economic damages (pain, suffering, disfigurement, etc) in ANY civil lawsuit.  This includes medical malpractice, but is not limited to it.  A bill that was just signed into law this week will put a $750,000 cap on non-economic damages in medical malpractice, but the structure of the cap makes it likely that many medical malpractice cases will be capped at $500,000 and most nursing home cases will be capped at $250,000.  Because the Texas Supreme Court struck down caps 30 years ago as unconstitutional (violated our open courts provision), supporters of the caps this time also introduced a constitutional amendment to give the legislature power that has resided with juries for centuries.

May 19, 2003, 9:04PM
CONSTITUTIONAL AMENDMENT

Senate sets ballot date for lawsuit reform

By CLAY ROBISON
Copyright 2003 Houston Chronicle Austin Bureau

AUSTIN -- With opponents arguing that the timing is designed to reduce voter participation, particularly in Houston, the Senate gave final approval Monday to a Sept. 13 election on the key part of a package of new restrictions on civil lawsuits.

If approved by voters, House Joint Resolution 3, which passed the Senate 22-9, would amend the Texas Constitution to make it clear that the Legislature can limit some damages in medical malpractice claims and other civil actions.

The measure already had been approved by the House and will now be placed on a statewide constitutional amendments ballot. It doesn't require action by the governor.

Caps on noneconomic damages -- such as pain, suffering and disfigurement -- are important parts of House Bill 4, a major overhaul of medical malpractice and other civil justice laws that also has been approved, in different forms, by the House and Senate. It has the support of doctors, insurance companies and other businesses.

Some supporters of HB4 believe lawmakers already have the constitutional authority to set the caps. But the issue is cloudy enough that supporters also fear that, unless the question is resolved by the voters, plaintiffs attorneys and other opponents could tie up the legislation with lengthy and expensive court challenges.

Sen. Jane Nelson, R-Flower Mound, the Senate sponsor, called the constitutional amendment a "critical component" of the effort to crack down on medical malpractice and other civil damage claims.

For a number of years, most constitutional amendment elections have been held on the general election date in November, when voter turnout normally is swelled by elective offices on the ballot, particularly in Houston.

Houston, in fact, often decides the fate of constitutional amendments in odd-numbered years because the turnout for mayoral and city council races in the state's largest city swamps turnout in other parts of the state. This year's contested city races in Houston will be decided on Nov. 4.

But sponsors of HJR3 scheduled the election for Sept. 13, when voter turnout in Houston will be much lower.

Sen. Leticia Van de Putte, D-San Antonio, said supporters of the civil justice changes are "scared to death of Harris County voting."

She said they fear a heavy turnout in Houston because "it's going to be an inner-city vote, it's going to be a high minority vote."

She said those concerns were expressed to her in "strategy meetings with people who really want this bill passed and want this amendment passed."

Sen. Jeff Wentworth, R-San Antonio, also argued that the election should be held in November to encourage maximum voter participation and also eliminate the need for an extra, costly election.

Nelson denied that sponsors had picked Sept. 13 to try to discourage opponents from voting. She said it was a uniform election date and it was important to have the amendment approved as soon as possible to begin providing relief to doctors from unwarranted malpractice claims.

"Unless we do something now to put an end to that, I am seriously concerned about the health and well-being of our citizens," Nelson said.

She also pointed out that the Senate already had approved two other, nonrelated constitutional amendments for placement on the Sept. 13 ballot.

HJR3, if approved by voters, would uphold any caps on noneconomic damages ultimately approved by the Legislature this session for medical malpractice cases and allow future legislative sessions to limit noneconomic damages in other types of civil suits.

"The vote on this amendment is just 117 days away. Expect the war of dueling television ads to begin right away," said Jon Opelt, executive director of Citizens Against Lawsuit Abuse.

The House version would limit noneconomic damages in medical malpractice cases to $250,000. The Senate amended the bill to allow an injured party to receive as much as $750,000 from all defendants in a malpractice case but limited an individual provider's liability to $250,000.

A House-Senate conference committee likely will be appointed to negotiate a compromise.