HB4 goes beyond malpractice,
attacks entire justice system

     Most of the attention on tort reform in the current Texas legislative session has been on medical malpractice and malpractice insurance rates. However, the bill introduced to address the medical malpractice issues, House Bill 4, is actually a sweeping attack on consumers' ability to obtain justice in our civil court system.
     Of course, HB 4 seeks to cap non-economic damages such as pain and suffering and mental anguish $250,000, an amount that  is simply too low to compensate victims of egregious acts of malpractice. And even if this cap is put in place, the insurance industry is not likely to significantly lower rates, as it promised to do the last time a tort reform measure addressing medical malpractice was passed in 1995.
     But HB 4 goes way beyond an artificially low cap on medical malpractice damages. It is a massive attack on the civil justice system in Texas and, if passed , will lock out citizens from the third branch of government.
     Among the proposals in HB 4 that go beyond medical malpractice are:

• Article 1, which would put class action lawsuits in limbo if a state agency has jurisdiction over the subject matter. This would bar most class actions, even if the state agency took no action.
  
• Article 2, which is an appalling parody of the English "loser pays"  rule that unbelievably applies only to plaintiffs and not to defendants. Thus, a  losing plaintiff in a lawsuit would have to pay the defendant's attorney's fees and costs, but a losing defendant would not have to pay any of the plaintiff's attorney's fees and costs. Under the current rule, the American rule, each party pays its own costs and fees, and thus everyday citizens have access to the civil justice system because plaintiff attorneys pay all the lawsuit costs, and only recoup those costs and are paid a fee if they win. HB 4 would deny many damaged citizens access to the civil justice system out of fear of being stuck with huge defense expenses.
  
• Article 4, which would allow allocation of responsibility to a "phantom share" or "empty chair" party  not before the court. The bill does not distinguish between nonparties who could not be brought into the suit and those who would be potentially liable if sued. Thus, a winning plaintiff could not collect damages because they were apportioned to a  non-defendant party with no liability.
  
• Article 5, which immunizes sellers who did not manufacture a product from liability for its defects. Thus, a company that designs a product and sells it, such as  toys or automobile components, could not be held liable for the damages caused by the product because it did not manufacture it.