Madeline Rodriguez was born by emergency cesarean section amidst a troubled pregnancy just after Christmas 1996 in an El Paso hospital. Due to a lack of oxygen, she became “totally dependent on others for all activities of daily living.” Her mother blamed the emergency room physician and hospital but, for whatever reason, she failed to file a lawsuit alleging malpractice till 15 years later.
Problem: Tort reforms passed by the Texas Legislature in 2003 forbid medical malpractice lawsuits from being filed more than 10 years after the injury. And so Madeline’s mother, Elizabeth Rivera, challenged the state’s tort reform law as denying Madeline’s state constitutional right to access to the courts as well as on retroactivity grounds — the alleged injury happened well before the tort law’s passage.
The case bristled with emotion: a child born with severe brain damage; a parent who delayed filing a suit in the matter; and the potent question of whether tort reform and its time limits on suits unfairly block someone from filing over medical bungling if he or she doesn’t come of age till more than 10 years after the alleged injury. In short, if parents or guardians drag the matter out, the child might pay a lifelong price.
In 2014 the Texas Supreme Court held in an 8-1 decision that Madeline’s mother had waited too long to file under state law, regardless of whatever the Texas Constitution says. So here’s the big question: Is this many-layered matter one over which conservative-minded jurists can reasonably debate and disagree — or should the jurist who dissented from the pack be booted from the high court as a judicial outlier?
That in a nutshell sums up issues in the Republican primary election for Texas Supreme Court Justice Debra Lehrmann, 59, a former family law judge whose re-election bid is challenged because of occasional dissents from the court majority. The accusations by her challenger allege she’s a judicial activist — a damning claim in Texas.
“She is the most frequent dissenter on the court against the majority of the court, which is widely considered to be a conservative court,” Texas First Court of Appeals Justice Michael Massengale said during a campaign stop in Waco last week. “When you look at her written dissenting opinions, half of them have been specifically on one subject — tort reform.”
Massengale, 43, has stacked up some heady political endorsements, including Texans for Lawsuit Reform and, not unexpectedly, the political arm of the Texas Medical Association. He says his argument with Lehrmann has less to do with her dissents as what unguarded moments betray about real motivations behind some of those dissents.
Massengale acknowledges Justice Lehrmann’s court opinion in the Rivera case relies on constitutional grounds — including the idea of access for all to the courts versus legislative restraints to such access. But he holds that her subsequent comments to the Texas Medical Association while trying to win its endorsement showed her real motives: in this case, the welfare of children. Local physician Brad Holland, who oversees TEXPAC, which scrutinizes candidates for the Texas Medical Association, verifies Massengale’s take on the matter.
“It was more philosophical, that she wanted to support children and be their advocate and give them every opportunity, but she was not citing a lot of constitutional backing for that, though I can’t say that was a huge issue,” Holland said of Lehrmann’s meeting with TEXPAC. “It was more the fact that, on the issue of tort reform, we feel that we have enough of a threat of being sued as it is without being a moving target — and that, even though the law is written, it could be changed by a justice on the Supreme Court, altruistic motives or not.”
Endorsed by former Texas Supreme Court chief justices Wallace Jefferson and Tom Phillips, Lehrmann correctly insists judicial dissent is vital on any appeals court and dismisses right-wing critics who take issue “with the fact that we don’t have a court that rubber-stamps each other.” She cites one of her teachers, the late, great Antonin Scalia, as an example of one offering influential dissents. In the final analysis, though, Scalia’s being a federal judge with a lifetime appointment allowed him to say all manner of things, some pretty wild, beyond his court opinions. Lehrmann and the complicated layers of at least some of her court opinions instead depend on the whims of an electorate that couldn’t name a third of the justices on the Texas Supreme Court if their collective lives depended on it.