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Texas vote tests a new tactic to curb jury awards

The strategy: Change the state constitution to make a cap on medical-malpractice damages stick.

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Supporters say it will help keep healthcare affordable and accessible. Opponents say it will strip power from the courts and diminish the legal recourse of people harmed by medical malpractice.

On Saturday, Texans will have to weigh those competing messages when they vote on a proposed amendment to the state constitution, which would allow the legislature to cap noneconomic damages in medical malpractice cases at $750,000.

If it passes, Texas will be the first state in the nation to rewrite its constitution to limit those damages, which relate to a victim's pain and suffering. Economic damages - the tangible toll of an injury on one's life - would continue to be awarded without limit.

The measure has arisen at a time of growing nationwide concern over rising healthcare costs - and debate over whether medical malpractice insurance is a key to the problem.

Saturday's vote here comes after 21 states have capped noneconomic damages, often to see the laws overturned on constitutional grounds. The Texas proposition is being closely watched nationwide as a sign of whether legal reformers can use this tactic to make such caps stick in other states.

In effect, the Texas proposition would ensure that caps already enacted by the legislature in 2003 will withstand court challenges.

The move is paralleled in the US Congress, as Senate Republicans gear up for a similar fight over limiting medical-malpractice damage awards. Democrats already blocked one such effort this year.

Because the issue is so complex and the stakes are high, it has been the subject of intense campaigning - and the outcome will depend largely on which side made the better sales job. "In polls, if you phrase the question, 'Do you think jury awards are out of control?' people will answer 'Yes.' If you phrase the question, 'Should corporations be able to injure people and get away with it?' people will answer 'No,' " says David Bernstein, a tort-reform expert at George Mason University in Arlington, Va.

Already, the proposal has attracted larger-than-normal turnout here, in a state where early voting is allowed.


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