TortsProf Blog

Editor: Christopher J. Robinette
Widener Commonwealth Law School

Tuesday, May 20, 2008

Texas Reform Rules! Or Not! One of Those!

Brooks Schuelke, an Austin plaintiff's lawyer, has a post describing two almost simultaneous evaluations of Texas's medical malpractice liability reforms. The first, unsurprisingly positive, comes from one of the legislative architects of the reform, Joe Nixon, in a WSJ op-ed. The second, reaching distinctly different conclusions, was done by a local Fox affiliate.


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Nixon's article provides some evidence that torts are stealthy, and unlawful industrial policy making by courts without authority nor competence. Liability decreases an entire activity, not just misconduct in that economic sector. Immunity or decrease in liability increases activity in a sector. In the case of medmal, the majority of claims are weak, pretextual, fail, and designed to extort settlements in an unauthorized lottery.

I have never seen torts experts nor law/economics experts address this violation of Article I Section 1 of the US Constitution, the state constitution equivalents, and of both the Dormant and Awake Commerce Clauses. These modest tort reforms enhanced the ability of doctors to choose to come to Texas, and of patients to choose to get their clinical care.

It rebuts somewhat the contention that tort reform does not work. It rebuts the argument that the sole remedy to lawsuit abuse is to end all judge and lawyer immunities and obstacles to claims by adverse third parties. These immunities remain unjust and unconstitutional, by their violation of the Establishment Clause.

Posted by: Supremacy Claus | May 21, 2008 2:35:41 AM

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