Loser Pays?

The political machine "Texans for Lawsuit Reform" is working hard to get Texas Republicans to line up and support tort reform, particularly, House Bill 274 and Senate Bill 13.  Rick Perry, Representative Brandon Creighton, and Senator Joan Huffman are getting out the word that "Loser Pays" is a winner.  What is "Loser Pays"?  Simple: those who lose in court are required to pay the other party's attorney fees, travel expenses, court costs, and other various fees.

What they aren't telling you is this: the legislation doesn't apply to "losers," it applies to defendants.  Period.  That means that plaintiffs will toss in the cards because they know they have even more to lose in this plaintiff-unfriendly state.

The loser bandwagon claims that tort abuse (personal injury claims, for instance) is a big problem in Texas.  That's wrong.  Throughout the country, and in Texas, tort claims have steadily decreased while all other causes of action have remained the same or risen.  The National Center for State Courts, a nonpartisan collective of judicial resources, have concluded that from 1997 to 2006, tort claims have plummeted 21%.  This is despite an overall increases in litigation of 8% across the country.  In short, tort claims are the only area that have continually fallen, including medical malpractice (8% drop), products liability (4% drop), motor vehicle accidents (23% drop), etc.  The report can be found here.

But wait, doesn't that mean that the frivolous claims are disappearing, and tort reform is weeding out the bad cases?  Apparently not.  Take medical malpractice.  According to the Texas Medical Board, despite medical malpractice reforms and the documented decrease in medical malpractice cases, administrative medical malpractice investigations have skyrocketed at a 61% increase through 2009.  This suggests that injured patients are being told by Texas attorneys they can't win, and so their only means of recourse is to file grievances with the medical board.  That is a sad state of affairs.

The loser bandwagon also doesn't want to mention one final thing.  All of these advocates for the "Loser Pays" system received generous paychecks written by Texans for Lawsuit Reform.  Brandon Creighton received $10,000 from TLR for his 2010 campaign.  So did Senator Huffman and Senator Deuell.  Finally, Rick Perry, who championed the benefits of "Loser Pays" last February received $158,025 from TLR in 2010.

This is only a component of the tort reform initiative underway.  We will report more on the other aspects of H.B. 274, S.B. 21, S.B. 13, and S.B. 1856.