The Right Wing's Drive for 'Tort Reform' (Page 2)

Jacqueline Smith hoped the Texas Department of Human Services, which regulates nursing homes, would discipline Heritage. But DHS found that Heritage had done nothing wrong in hiring Arceneaux, since the facility had performed the required criminal background check, which came up clean. The agency's report found that "based on substantial evidence, [Arceneaux] sexually abused [Smith's mother]," but didn't cite Heritage for any deficiencies. (Heritage continues to deny any impropriety in hiring Arceneaux.)

Furious, Jacqueline Smith decided to try to do DHS's job herself, with a lawsuit. It fell to Frank Ivy, an Austin lawyer, to explain that tort reform in Texas had made her suit almost impossible financially no matter how negligent Heritage had been. Since the assault took place in the course of delivering medical care, it was considered malpractice--but that wouldn't help Smith. A nursing-home patient can't sue for loss of future income, a type of award that had been separately capped. Punitive damages were unlikely because the standard of proof had been raised under then-Governor George W. Bush, requiring Smith to prove that Heritage intended to harm her mother, a so-called "malice" standard.

Ivy explained that the only money Smith could extract from Heritage would be for her mother's "pain and suffering." To that end, testimony could be introduced about the terror caused by the brutal rape of a confused, elderly woman. But even the most sympathetic jury couldn't give her more than $250,000, the limit set in the constitutional amendment that had passed the previous September. Then Ivy explained why even the maximum award, which Smith was unlikely to get, wouldn't be enough. Tort reform would force Smith to hire experts in several fields, including psychiatry and nursing-home administration, to prove Heritage had been negligent, costing as much as $20,000 per witness. And with settlements rarer because insurance companies know a jury can't sting them for more than $250,000, a trial was far more likely than before the initiative passed. All told, Frank Ivy's five-person law firm had to be prepared to spend $100,000 with no guarantee of recovery or earning its contingent fee of 40 percent of the payout. When all the math was done, the best Smith could hope for would be to win perhaps $50,000 from a nursing home that apparently hired a sexual predator to care for her mother.

Because of the changes in the law, Ivy's firm now takes only a handful of malpractice cases. He hopes--but isn't sure--that Smith's will be one of them.

Smith says she doesn't care about the money. "I want to make them accountable so that it doesn't happen again," she says.

Before entering Heritage her mother had lived with Smith in her mobile home until Smith came to fear leaving her alone. "My mother became my daughter. It was like having my young daughter assaulted. And it's been extremely difficult."

There are no statistics, but a four-month Nation investigation established to a virtual certainty that there are many cases like Jacqueline Smith's mother, victims the civil justice system once helped who are now routinely barred from court. This is happening not only in Texas but in many other states, as a kind of tort-reform frenzy has swept the country during the past two years. Malpractice "reforms" are only the thin end of the wedge for a much bigger agenda. Lined up behind the doctors are most of the Fortune 500, a formidable coalition led by insurance and tobacco companies, far-right think tanks and dozens of well-heeled pressure groups, many of them fronts for corporate interests. Buoyed by the conservative tide flowing through the country, this coalition has stepped up the pressure to enact damage caps and other measures. Before unleashing its campaign ads, the Chamber of Commerce had already poured $100 million into an antilawsuit lobbying and publicity blitz that claimed product liability suits add a "tort tax" of $809 per person every year to the cost of goods and services. Stories highlighting the lawsuit abuse "problem" have become a staple in Reader's Digest and the newsweeklies.

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