Judson Phillips, founder of Tea Party Nation and Associate Director of TheTeaParty.net, has been defending the 7th Amendment for much of the past year, and is among the national conservatives most quoted on the unconstitutionality of federal limits on medical malpractice awards. Judson's years of experience in the courtroom as a litigator and prosecutor, and his years of political activism, endow him with special credibility on these issues. Last week, he challenged the conventional wisdom on the impact of Texas state limits on medmal awards in a post and a radio interview.
Judson posted 'A hollow liberty' on TeaPartyNation.com on July 9. In it, he discussed the deterioration of the constitutional right to a civil jury trial through tort reform laws. He then described a famous medmal case in Texas in which the victim was left with no means of exercising his right to hold the negligent doctor accountable in court, thanks to Texas medmal limits. Here is an excerpt:
"What good is a right if you cannot exercise it? That is not one of those, if a tree falls in the forest and no one hears it, does it make a sound questions. Our Constitutional rights are under assault from various sources. Those who want to attack our rights have learned they can never get those rights repealed, so instead they simply try to make it impossible for those rights to be exercised.
What happened to Charles Caldwell is a terrible example of what has gone wrong. Caldwell suffered from Parkinson's disease and went to a nursing home after surgery to recover. Among other things, a feeding tube was placed in his stomach because he could no longer swallow.
His son and daughter in law Bill and Kelly Putnam were visiting his father when the nurses at Signature Pointe Nursing home tried to give medications to Caldwell through his feeding tube. When the medicine did not go down the right way, the nurses tried the old fashioned method of "if it doesn't go, force it." After three tries it did not go. Finally Caldwell began to struggle and thrash. The medicine had gone into his lungs instead of going into his stomach. Caldwell drowned on medicine in front of his family.
When Putnam decided he was going to sue over his father's death, he found the hard truth about Tort Reform. No lawyer would take the case. It was not that it was not a strong case. It was a strong case. Simply put, because of Tort Reform lawyers can no longer take those types of cases because they are no longer economically viable for the lawyers."
Judson reminded his readers that it's impossible for us to exercise our 7th Amendment rights if we state-imposed limits disincentivize lawyers to take the case. "By imposing caps on so-called "non-economic" damages, lawyers can no longer take these types of cases. Lawyers have staffs they have to pay. They have expenses such as the costs of their offices. Plus in cases such as these, the lawyer will advance the costs for expenses such as the required experts who must review cases before a suit is filed. Without a lawyer, the 7th Amendment Right to a jury trial is effectively gone."
And he referred to recent studies concluding that Texas medmal limits have neither kept health care costs down nor attracted doctors to Texas. "The myth of tort reform is that it will reduce costs and will attract doctors to the profession. Unfortunately as with all myths, that one is untrue. Healthcare costs in Texas have not been reduced, nor are doctors flocking to Texas."
Judson Phillips concluded with a warning for Americans about the future if Congress imposes a federal limit on medmal awards. "What has happened is that another right has been lost. Freedom is reduced and liberty has taken another step towards becoming simply a hollow shell."
He was interviewed about this issue on July 11 by Terry Lowry for his nationally syndicated 'What's Up' program, heard weekdays on 12 radio stations and on Sirius Channel 131, Family Talk Radio. You can download and listen to the first segment here and the second segment here. That program is the only nationally broadcast program on radio or TV to regularly defend and discuss our constitutional right to a jury trial for civil rights and deserves our support.