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Pediatric ophthalmologist Dr. James Mims III stands in his exam room with some of the tools of his trade. Photo by Mark Greenberg
You'll have to perform brain surgery on yourself.

You won't get a penny if a doctor removes the wrong leg.

Doctors will disappear altogether.

These are among the dire predictions surrounding Proposition 12, a proposed amendment facing voters on September 13.

Of the 22 proposed amendments to the gargantuan Texas Constitution, Prop 12 is the most controversial. It reads as follows: "The constitutional amendment concerning civil lawsuits against doctors and health providers, and other actions, authorizing the legislature to determine limitations on non-economic damages."

In other words, elected officials, not a jury of your peers, will determine how much money you deserve in a civil lawsuit.

A bit of history: In 1977, the state legislature passed the Medical Liability and Insurance Improvement Act, which capped all damages except medical expenses for health care liability claims at $500,000. Eleven years later, the Texas Supreme Court repealed the law, stating, "Non-economic damages are those for pain, suffering, disfigurement, and loss of loved one. Economic damages, which are the actual costs of medical care and loss of income during recuperation, would not be limited."

This year, the legislature conjured House Bill 4, which places a $250,000 cap on non-economic damages from physicians and health workers - and adds a separate $250,000 cap for hospitals and other health entities. It went into effect September 1, but the law is expected to be challenged.

Proposition 12 would seal the deal, removing the state court system from the picture. The amendment might seem innocuous enough - it apparently would protect physicians from lawsuit abuse - but the dark side of the proposition is contained in three little words: "and other actions." Those words not only limit jury awards in medical malpractice cases, but opens up a Pandora's Box of tort limitations in any type of civil lawsuit.

"Why did they insert "any other action?" asked local attorney David McQuade Leibowitz, who appeared in the community room of the Central Market recently to debate the amendment with Dr. David Kottman. "If this constitutional amendment was on the books in the 1990s when Ford Pintos were exploding, the people who were burned alive would be out of luck (meaning their surviving loved ones), and Pintos would still be on the road," Leibowitz said.

The attorney said that he fears if Proposition 12 passes voter muster Saturday, citizens would "rue the day" 10 years from now when they realize that juries are restricted in awarding damage amounts in civil lawsuits. "Why is it okay for juries to take a life on the criminal side (impose the death penalty), but are not competent to put a dollar value on the civil side?"

Leibowitz said doctors need to police their profession, and to eradicate the few bad apples committing malpractice. He contended that doctors are being duped by Proposition 12, and that insurance companies are not hiking insurance premiums because of frivolous lawsuits, but because they have cut bad real estate deals and other investments. As a result, they have increased premiums to pay for their losses. "It's the biggest sales gimmick in the world," Leibowitz said.

"Why is it okay for juries to take a life on the criminal side (impose the death penalty), but are not competent to put a dollar value on the civil side?"
— David McQuade Leibowitz
But Dr. James Mims III, a local pediatric ophthalmologist, says this amendment would provide a "benign, very partial limitation on non-economic damages in medical malpractice cases. You would still be able to sue for lost wages, medical costs, and up to $750,000 in damages for pain and suffering," he wrote recently in an e-mail.

"I am the southernmost pediatric ophthalmologist in Central Texas; everyone else has moved out of the valley due to lawsuit abuse," Mims claimed. He contended that a year ago there were five physicians practicing in his specialty in San Antonio. They have decamped primarily because of an 8.5 percent reduction in Medicaid reimbursements, but not due to malpractice cases. One doctor retired early, one moved to another city where there are fewer children on Medicaid, one schedules appointments so far into the future that patients go elsewhere, and one plans to relocate to Saudi Arabia.

Dr. Mims said he has never been sued for malpractice, and his insurance premiums are much lower than physicians in other specialties. The hardest hit are neurosurgeons, who have seen as much as an 80 percent hike in medical malpractice insurance premiums - and fewer doctors are sticking with the specialty. "This is the end point. If the insurance premiums are going up, we will have to deliver our own babies and do our own brain surgery," Mims warned. "That's what it boils down to. The truth is we have a lottery, and the only people who win are malpractice attorneys."

This is hogwash, says Harvey Wachsman, a physician-turned-attorney who penned Lethal Medicine in the 1990s. He wrote that "the mythmakers contend that since most malpractice lawyers have a contingency fee arrangement with their clients, and that clients have nothing to lose by suing a doctor, the system has become a lottery with unhappy patients, encouraged by greedy lawyers, taking a chance that they will be able to win a big award."

He cited a case where an obstetrician was a no-show for a baby's birth. The umbilical cord tangled around its neck and cut off its oxygen supply. The hospital resident, instead of opting for a Caesarian procedure, prescribed a dose of Pitocin, which induces contractions. The mother hired an attorney to pursue a malpractice lawsuit. "The mother settled for $4.5 million, but that is not enough to cover the cost of caring for a severely brain damaged child over its lifetime," Wachsman wrote.

In his book, he contends that limits on damages merely allow insurance companies to save money, and incompetent doctors to avoid blame and discipline: "The public is left unprotected from doctors who maim and kill their patients."

Physicians deserve respect for their work and relief from high malpractice insurance premiums, but critics point out that Proposition 12, with its forays into arenas beyond the medical field, is not the answer.

And there is a greater question looming over this election: Two local government professors, William Earl Maxwell and Ernest Crain, describe the Texas Constitution as a document that is "poorly drafted, disorganized and contains much deadwood."

Should Prop 12 be another piece of a cumbersome document that has been amended 410 times since it was ratified in 1876?

And considering the recent antics by the Texas Legislature, do we really want them to cook up any more laws that negatively affect the citizens of this state?

The answer is no and no.

If you find the time to vote on September 13 perhaps you should send a message to the squabble-rousers in the Texas Legislature. Find the "No" lever and pull it to vote against all 22 of the amendments. No more laws until the lawmakers get their shit together. •

More by Michael Cary



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