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With the passage of Proposition 12 on Saturday, the next shoe to drop for Texans is likely to be limitations of non-economic damages in all types of civil cases, opponents of the constitutional amendment say. “I think that is the plan — to cap damages in other types of lawsuits,” says Tommy Fibich, a partner in Houston’s Fibich, Hampton, Leebron & Garth. State Rep. Joe Nixon, R-Houston, author of the legislation that placed Proposition 12 on the ballot, says that isn’t the case. “That was a straw argument” put forward by the opponents, says Nixon, a partner in Houston’s Phillips & Akers. “I will not vote for, support or introduce legislation that puts caps on other types of causes of action,” he says. Passage of Proposition 12, one of 22 constitutional amendments on the ballot, blesses the damage limits that the Legislature placed on medical-liability suits as part of H.B. 4, the sweeping tort reform measure passed during the regular session this year. The amendment also authorizes lawmakers to put limits on non-economic damages in other kinds of civil suits. But while the Legislature returned to work on Sept. 15 for a third special session on congressional redistricting, damage caps won’t be on the agenda. Under Proposition 12, lawmakers can’t consider such limits until after Jan. 1, 2005. Proponents of the constitutional amendment and their political committee, Yes on 12, focused their message on the provision in Proposition 12 that authorizes caps on non-economic damages in medical-malpractice suits. In print and television advertising, the proponents warned that large damage awards against doctors have caused such huge increases in liability insurance premiums that some doctors have been forced to stop practicing in Texas. Although Proposition 12 also authorizes the Legislature to limit non-economic damages in other kinds of civil causes of action, Nixon says the amendment makes it harder for the Legislature to do that because any bill that would do that must be passed by a three-fifths vote in each house. Fibich, who monitored H.B. 4 for the Texas Trial Lawyers Association during the regular session, says the legislation for Proposition 12 would have required a two-thirds vote, but that provision was changed late in the session. The three-fifths vote is a less onerous requirement that had been proposed, he says. Former Supreme Court Justice Deborah Hankinson, treasurer of Save Texas Courts, a committee that opposed Proposition 12, says the inclusion of the three words — “and other actions” — in the amendment indicates the intent. “They put it on there for a reason,” says Hankinson, a partner in Dallas’ Hankinson & Whitaker. Nixon says the amendment makes it harder for the Legislature to pass other damage caps because any bill that would do that must be passed by a three-fifths vote in each house. Dick Trabulsi, president of Texans for Lawsuit Reform, says his group isn’t looking to limit non-economic damages in causes of action other than medical-malpractice suits. “There has never been a serious discussion within Texans for Lawsuit Reform, to date, about caps other than in medical-malpractice lawsuits,” Trabulsi says. “I know of no proposal within the broad tort reform community.” The opponents say the close vote on Proposition 12 is an indication that the people oppose capping damages in other kinds of cases. According to the Elections Division in the Texas Secretary of State’s Office, Proposition 12 passed by about a 51 percent to 49 percent margin. Final tabulations show the vote difference was about 32,700, with 1.46 million votes cast. “That should give anybody a lot of pause,” Fibich says. “The people don’t want the civil justice system messed with beyond medical malpractice.” Trabulsi says passage of Proposition 12 should provide immediate relief to doctors from skyrocketing medical-malpractice premiums. Hankinson says Proposition 12 proponents have argued that it will improve health care in the state. The two unknowns, she says, are whether the amendment will improve health care and whether the Legislature will step out and cap damages in other causes of action.

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