Page Two

The Texas Constitution is a sad joke, regularly amended to accommodate the most mundane considerations. Read the amendments proposed this year to see how insignificant, and frequently incomprehensible, they are. The process itself has neither a vetting process nor legal oversight. The perfect example is Proposition 5, which offers visiting snowbirds a tax exemption on recreational vehicles. Absurd enough as it is, this is a corrective to an attempt to do the same that was passed just two years ago but was so poorly worded it did the opposite. If there weren't real consequences, we'd urge a "no" vote on all until the wherewithal is found to overhaul the constitution. Short of that, reluctantly we offer endorsements.

Proposition 12 indicates the problems with this process as well as the current administration's and legislative majority's cynical agenda -- one that is morally corrupt, beholden to special interests, and unconcerned with the populace. This is the most deceitful amendment and is, moreover, the unacknowledged reason for having the election in September (rather than November) in hopes that meager turnout will help pass it. In spite of massive budget cuts, millions are being spent on special sessions and a separate election.

This paper is aggressively against Proposition 12 for good reason. As a piece of legislation, it stinks. Under the guise of helping doctors, it will ultimately indemnify industry and take power away from consumers. It is important, however, not to trivialize its concerns.

The doctors I know are the best kind; they got into medicine out of compassion, a love of people, and a deep sense of commitment to the community. Currently, they all feel an undercurrent of overwhelming despair. HMOs on the one hand and threats of lawsuits accompanied by the ever-rising costs of malpractice insurance on the other have changed the focus of their professional lives. They are concerned that the quality of patient care has been compromised by reams of required bureaucratic paperwork.

Proposition 12's clause "and other actions," however, is the horrific Trojan horse. Concerns about health care are being exploited to pass this amendment. You can be certain every well-funded special interest in the state that uses this clause will ramrod through unconscionable liability limits in totally inappropriate areas. In 2001, Gov. Perry vetoed a record 82 Republican-, Democrat-, and bipartisan-sponsored bills (79 in one day) at the behest of special interests, adversely impacting citizens as well as costing the state millions. Imagine the outrageous exemptions in the wake of Proposition 12.

The first place to address the doctors' legitimate issues should be in regulating the insurance industry. Medical legal costs have risen, but there's more to it. The current economic climate has resulted in substantial losses for insurance-industry investments. Their major consideration is profitability. The escalating malpractice-insurance costs undoubtedly reflect those losses as well as litigation costs. But this state doesn't really know, because in any confrontation with insurance companies, it inevitably folds. Texas' "oversight" of insurance is a misnomer, with "tort reform" a pathetic first remedy.

Doctors make mistakes. Everyone does. Many people, when corrected, get indignant, thinking their overall performance record is being discounted. Unfortunately, doctors' mistakes have more serious consequences. Medical science is not as exact and predictable as we would like it to be. Often doctors can't be certain what is wrong with a patient. Ideally, only the consistently incompetent doctors would face serious liability. Under our judicial system, stellar doctors are often sued not only for mistakes or even cases where their most conscientious choices may be open to discussion, but also in cases where, despite everyone's best effort, the end result is not what's desired. Imagine operating under such considerations.

There are many committed plaintiff attorneys. There are also predators who are more interested in bragging about the size of their awards and could care less about the consequences.

Even those most aggressively in favor of tort reform should think about what juries actually consider in assessing high noneconomic damage awards. The tort-reform poster child is the elderly woman who poured scalding coffee in her lap. But not only did that jury hear of hundreds of similar complaints that McDonald's ignored, they were also informed that the coffee was kept that hot not for customer service but because it generated the deepest coffee smell, which stimulates hunger and thus purchases. Juries usually make outsized awards because of patterns of incompetence or gross negligence. Still, insurance companies are not going to cover these costs out of profits. Instead, they pass them along.

The medical community is panicked. Even if this remedy is flawed, the issues it addresses are real: not only communities losing specialized doctors and clinics, but the fact that so many doctors feel overwhelmed. This is a rotten piece of legislation that will have a massive negative impact in the long term. But in all good conscience, out of consideration for doctors, I can't urge you to vote against it, and in consideration of the health and well-being of Texas and Texans, I can't urge you to vote for it. If nothing else, please look at the utter civic corruptness of Texas' elected leaders and the ridiculous amendment process, both of which here have failed the people, their doctors, and our state.