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A Justice Raid Gonzalez than $50 worth of groceries. At some point while he was shopping, Richey put the cigarettes in his pocket. He paid for his groceries and returned to the store to buy $10 worth of baby food to put in a charity bin by the door. When confronted about the cigarettes in the parking lot, Richey apologized, and offered to pay for the cigarettes. The manager refused and called the police but neglected to tell the officers that Richey had purchased $60 worth of groceries and offered to pay for the cigarettes. After a jury acquitted Richey of criminal charges, he filed a civil suit against the store for malicious prosecution and another jury awarded him $36,800 in damages. Brookshire appealed. In a 5-4 decision, the Court overturned the verdict, claiming that the case turned on a point of law rather than a point of fact. \(Facts are decided by juries can John Cornyn was one of the dissenters. “By turning disputed facts into a question of law in this case,” Cornyn wrote, “the Court has simply substituted its opinion for that of the jury.” It was, according even to the conservative Cornyn, “an illegitimate exercise of power.” Illegitimate or not, the case is consistent with other decisions of the nine justices, who frequently find ways to substitute their judgment for the decisions of juries. Texas Trial Lawyers Association President Paula Sweeney complains, “On mandamus [orders to lower courts] they’re taking power away from trial courts; in cases like Richey they’re taking power directly away from juries; in other cases they’re assuming power to disqualify expert witness’ qualifications, and thus to reverse verdicts.” “The founders of the Texas Constitution were very clear that juries were to be a check on both the judiciary and the other two branches of government,” Harrington says. “Judges taking cases away from juries comprise a direct assault on democracy.” David Van Os, an Austin labor lawyer running an underfunded campaign to unseat Abbott, argues that consolidating power within a coterie of lawyers and justices is part of this Court’s “activist agenda.” “The jury system is democracy in action,” Van Os said, “and the corporate interests want to get rid of the jury system, because when citizens retire to the jury room they are out of the reach of lobbyists.” /n a case similar to that of the Agbors against St. Luke’s, Rhea Sampson sued the Baptist Memorial Hospital System over the results of a misdiagnosis in the emergency room of Southeast Baptist Hospital in San Antonio. Sampson was in fact misdiagnosed in Southeast’s emergency room twice within twenty-four hours. The poisonous spider bite causing her pain was correctly diagnosed later in the emergency room of another hospital, where correct treatment saved Sampson’s life. Yet the Court would eventually rule that Southeast’s parent company, Baptist Memorial Hospital System, bears no liability for Sampson’s misdiagnosis or any permanent physical aftereffects because Baptist Memorial stayed one step ahead of liability by contracting its emergency care out to another company. In a unanimous opinion, Chief Justice Phillips wrote of “the fiction that one should be responsible for the acts of another who is not in fact an agent acting within his or her scope of authority.” According to the Court, no reasonable patient would infer that the Southeast’s emergency room personnel worked for the hospital. Patients were sufficiently warned of the independent contractor status of emergency room doctors, said the Court, when they read the paperwork they signed requesting emergency care. Furthermore, signs posted on the walls of the emergency room describe the doctors as independent contractors. So the Texas Supreme Court unanimously agreed that any reasonable person even one enduring pain and stress in a hospital emergency room would duly take note of these disclaimers. Although a court of appeals had ruled in favor of Sampson, opining that hospitals in Texas should bear “nondelegable duty” for emergency room malpractice, the Supreme Court decided that “such a duty is not necessary to safeguard patients in hospital emergency rooms.” The Court’s decision was not universally applauded. Even the Wall Street Journal disagreed, describing the decision as an example of the Court’s “chipping away at the legal concept of duty,” and in so doing, providing “plaintiffs a lot less opportunity to sue.” According to Walt Borges, the Court’s determination to limit “duty” is just one more way to protect corporations from juries. Not even a lawyer has much hope as a plaintiff before this Court if the defendant is a powerful business. That’s what Colette Bohatch discovered when she sued her former law firm, Butler & Binion of Dallas, for wrongful termination. Bohatch, a partner at the firm, had been fired after she made a good faith report of suspected overbilling by a colleague. In ruling against her, the Court held that a legal partnership is an “at-will” relationship, based upon “trust,” and therefore even though Bohatch had acted in good faith and according to the ethical standards of her profession the firm had the right to fire her for her actions. “Ethical duties… [wrote the Court] sometimes necessitate difficult decisions.” In other words, lawyers should be forewarned: upholding the law can legally cost them their jobs and the interests of powerful law firms trump those of clients and the public. EVEN THOUGH BOHATCH HAD ACTED IN GOOD FAITH AND ACCORDING TO THE ETHICAL STANDARDS OF HER PROFESSION THE FIRM HAD THE RIGHT TO FIRE HER FOR HER ACTIONS. “ETHICAL DUTIES… [WROTE THE COURT] SOMETIMES NECESSITATE DIFFICULT DECISIONS.” 10 THE TEXAS OBSERVER NOVEMBER 6, 1998