The Right Wing's Drive for 'Tort Reform' | The Nation


The Right Wing's Drive for 'Tort Reform'

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Just as the GOP convention was about to kick off in late August, the US Chamber of Commerce made an unusual announcement. Although it had never in its 92-year history endorsed a presidential candidate, the organization vowed to help pump $10 million into ads in seven battleground states urging voters to support lawsuit restrictions endorsed by George W. Bush and opposed by John Kerry. Calling it "a make-or-break election for legal reform," chamber president Thomas Donohue charged that "lawsuit abuse destroys jobs, drives doctors out of business and forces companies into bankruptcy."

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Dan Zegart
Dan Zegart, a freelance investigative journalist who writes frequently on legal subjects, is the author, most recently...

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The ads put the 3 million businesses of the theoretically nonpartisan chamber squarely in Bush's corner. The Bush campaign has hit hard at the Kerry/Edwards ticket for allegedly being pawns of plaintiff's attorneys. Indeed, the lines could not be more clearly drawn. John Edwards had a meteoric career as a malpractice lawyer, while the Bush forces have made attacks on "junk lawsuits" a mainstay of their stump rhetoric."You can't be pro-doctor and pro-patient and pro-plaintiff's attorney at the same time," said Bush in mid-August in Michigan. "I made my choice. I am for medical liability reform now."

The crowd applauded, although voters have never shown the slightest interest in "tort reform." But regardless of whether or not the issue helps Bush get re-elected, its heightened prominence demonstrates the escalation of the stakes in what is now a thirty-year-long war by the ultra-right to disembowel the civil justice system and make America safer for companies to work their unfettered will. Piggybacking on the campaign of an incumbent President--who made lawsuit restrictions a central part of his governorship in Texas--the tort reformers have seized on this election as their defining moment.

In Texas, however, the future is already here, thanks to several generous helpings of "reform." Anyone who wants a glimpse of what's in store for the rest of us would do well to look at Bush's legacy in his home state.

Jacqueline Smith has a hard time with the idea that suing over her mother's rape in a nursing home is "frivolous." Smith voted against Proposition 12, a constitutional amendment on the Texas ballot that capped medical malpractice awards. No state in history had ever taken the radical step of changing its constitution to restrict lawsuits. Smith, a 54-year-old freelance writer, didn't believe the TV commercials claiming that suits by greedy lawyers were driving up malpractice insurance premiums to the point that doctors were quitting medicine. Nevertheless, in September 2003 Proposition 12 passed by a razor-thin majority.

Smith herself had never had reason to sue anyone, until 2:30 am on November 7, 2003, when a male nurse noticed that a patient's door at the Heritage Duval Gardens Nursing Home in Austin was closed when it should have been open. He heard crying, and when he snapped on the light, he saw a man leap from the bed of an elderly woman. The woman was naked. The man's pants were around his ankles. The man, according to police, was Kevin Arceneaux, a 6-foot, 190-pound nurse's aide. Still sobbing softly in her bed was Smith's mother, an 85-year-old Alzheimer's patient. Two months later, police arrested Arceneaux and he confessed.

Jacqueline Smith wanted the nursing home punished, especially when she learned that Heritage knew--or should have known--when it hired Arceneaux that in eight years as a certified nurse assistant, he had never held a job for more than five months. He arrived at Heritage after a brief stint at another nursing home in Austin, where he had been questioned regarding a woman who was sodomized there on his third day. Before that, he worked eleven days at another facility. Despite Arceneaux's checkered past, Heritage hired him on September 22 and put him on the lightly supervised night shift. Within six weeks, an Alzheimer's patient was sexually assaulted a few doors down from Smith's mother and then Smith's mother was raped, though police didn't learn of the first attack until much later.

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