Texas, Proudly Marching Backwards

by Molly Ivins

Gov. Goodhair's decision -- in the face of popular opinion, the Supreme Court and George W. Bush's recent conversion on this subject -- is a testament to his strength of character. Or something. His Perryness announced, anent the veto, that Texas does not execute the retarded. I beg your pardon, Governor. Johnny Paul Penry, now on Death Row for a heart-breaking murder and the subject of two Supreme Court decisions, has an IQ between 51 and 60, believes in Santa Claus and likes coloring books.

And that's not counting the other six we know about for sure since 1990. One retardate we killed thought he had been sentenced to death because he didn't know how to read and kept trying desperately to learn while he was in prison. Another kept asking his legal-aid lawyer what he should wear to his funeral, under the impression that he would be there for the social occasion. And there is a possibly apocryphal story -- I've heard it from good sources but never been able to confirm it -- about a retarded inmate who asked for pudding for dessert with his last meal. When the guards asked why he hadn't eaten the pudding, he said he was saving it for later.

And how happy we Texans are to see Washington revisiting one of our favorite old debates, the patients' bill of rights. The Texas Legislature did this twice, first in '95 and then '97, with great screaming bellows of rage and threats both times. Basically, the line-up is your insurance companies, your HMOs and your bidness community against your doctors, your lawyers and your consumer groups.

The African proverb, "When the elephants fight, the grass gets trampled" is useful here -- the people most apt to get hurt are patients, but nobody ever mentions them. Insurance industry ads are now shrieking that should the dark day ever come when patients are allowed to sue their HMOs, insurance costs will skyrocket, and companies will have to cut benefits and even drop coverage. These are the same people who told us the last increase in the minimum wage -- and the one before that and the one before that, etc. -- would cause unemployment to skyrocket. They're all having such a good time scaring people to death with their doomsday predictions they may not want to run a reality check, but one is available.

Texas, as George W. Bush proudly pointed out in one of his debates with Al Gore, had the strongest patients' bill of rights in the country. The upshot after four years is that we now have a grand sum total of 10 lawsuits filed against HMOs -- the predicted "flood of lawsuits" isn't even a drip. Insurance rates in Texas have not shot up, they are below the national average -- and no one's health insurance has been cancelled because of the law.

During his presidential campaign, Bush, who likes to have things both ways, claimed he personally had gotten "Republicans and Democrats together" in Texas to pass this strong bill of rights. Actually, he vetoed it the first time and then refused to sign the right-to-sue provision the second time, after it was passed by a veto-proof majority. Because he did sign other, less important parts of the package of bills, however, for campaign purposes he proudly claimed authorship of the very bills he had fought. Now he's back to threatening to veto a patients bill of right with any teeth in it.

In California, a strong patients' bill of rights that provides for unlimited damages, as well as access to second opinions and an HMO regulator, has been in effect since January and so far exactly zero lawsuits have been filed. Pretty scary, huh? During the California fight, insurance and HMO's predicted not a "flood of litigation" but "an explosion." More like a wet Cherry Bomb.

As the Tom Paine website noted recently: "'Tort reform' is a nice name for the ongoing effort by corporations to immunize themselves from legal responsibility for causing death or injury. These corporations have already weakened the counterbalance to their power provided by legislators, regulators and judges. But juries don't take campaign contributions. They can't be lobbied or feted. ... 'The jury is the last line of defense against corporate misconduct,' says Craig McDonald of the non-profit Texans for Public Justice. 'The corporations are most afraid of 12 people they can't control.'"