Tort reform lobbying groups took an unusual step this week by filing a declaratory action suit here in Austin trying to establish that the 2003 medical malpractice caps on liability are constitutional. The suit stems from a lawsuit against Corpus Christi doctor John McKeever. In that suit, patient Adrian Cerny sued Dr. McKeever after Cerny developed a serious infection following surgery. As part of the suit, Cerny alleged in his pleading that the Chapter 74 caps on medical malpractice damages violated various provisions of the Texas constitution. Instead of litigating the constitutionality in the Corpus court, Dr. McKeever, tort reform lobbyist group Texas Alliance for Patient Access, the Texas Medical Association, and the Texas Hospital Association filed suit against Cerny in Travis County asking the Travis County courts to declare that the caps are constitutional.
This is a highly unusual move that I think will ultimately be unsuccessful. Dr. McKeever and the lobby groups filed their suit based on a provision in the act that said the constitutionality of the statute “may” be addressed in Travis County. The provision is not mandatory. It is the general rule in Texas that when two suits are filed litigating the same issue, the first suit usually controls, and the second suit must be abated (there are, of course, exceptions, but none that I think would apply here). Because it is not mandatory that the constitutionality be challenged in Travis County, I think it is likely that Cerny will file a plea in abatement arguing that the constitutionality is already being litigated in the Corpus suit. The plea should be granted, and the litigation over the constitutionality should continue in Corpus.
The real question is why use the Cerny case as a test case? Mike Hull, the lobby groups’ attorney, says that he chose this suit because Cerny’s lawsuit “has the broadest number of challenges to the Constitution.” But that’s not really true. The pleading by Cerny is not much different than most challenges. In fact, it may be more limited. Probably the best challenges to the statute are based on arguments that the statute violates the US constitution. Cerny doesn’t object to the caps on any federal constitutional basis. Perhaps we’ll see in the coming months the real reason that the lobby groups chose this case.
It will be interesting to see how this turns out. Regardless, we won’t have a dispositive answer until the federal courts chime in.
Travis Poling of the San Antonio Express News has an article on the case (and it quotes me).
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