Learn how Texas' tort reform affects patients like you

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Texas consumers were sold a bill of goods by conservative politicians and the corporate interests they serve. Many citizens were led to believe that their health care was in jeopardy due to a rash of frivolous medical malpractice lawsuits that threatened to run good doctors out of the state. In response, the voters approved a constitutional amendment to the Texas Constitution that imposed limits on the amount injured patients and their families could recover if they became the unwitting victims of medical errors.

In conjunction, the conservative Texas appellate courts have consistently handed down judicial decisions that have created numerous procedural obstacles for medical malpractice plaintiffs. The result has certainly not been an improvement in the quality of health care Texans receive. In fact, medical errors are on the rise.

The true result of tort reform is that decent, law abiding, tax-paying citizens who are harmed by the carelessness of a health care provider have virtually no recourse against those who harmed them.

Caps on Pain & Suffering Deny Injured Patients Just Compensation
Texas took on one of the most aggressive medical malpractice overhauls in the nation in 2003 when caps were passed on non-economic damages for medical malpractice victims. Non-economic damages, also known as "quality of life" damages, are those damages that are not easily quantifiable, like damages a patient may receive for any pain and suffering he endured while under the care of a negligent health care provider.

Non-economic damages for medical malpractice cases against physicians and other health care providers are capped at $250,000. An additional $250,000 to $500,000 cap was put in place for hospitals and health care institutions. (Tex. Civ. Prac. & Rem. Code § 74.301)

The result of this so called "reform" is to deny just compensation to unwitting patients who have been seriously injured by the negligence of a doctor, health care provider, or health care institution.

Tort reform disproportionately affects the elderly, children, women who stay at home, and the otherwise unemployed. Because these groups cannot recover economic damages for lost wages, their damages are even more limited than the damages of those patients who are employed.

Procedural Burdens Benefit the Health Care Industry
Another obstacle injured patients must overcome is the Chapter 74 expert report requirement. Medical malpractice attorneys will tell you that the Chapter 74 expert requirement has become a procedural nightmare with the rules of law heavily slanted in favor of health care providers.

Pursuant to Texas law, a plaintiff who files a medical malpractice lawsuit must serve on each defendant one or more expert reports no later than 120 days after the lawsuit is filed. (Tex. Civ. Prac. & Rem. Code § 74.351) These expert reports are intended to be a fair summary of an expert's opinion regarding the applicable standards of care, the ways in which the health care provider failed to meet those standards, and the link between the failure to meet standards and the harm, injuries, or damages the plaintiff incurred.

The intent of this requirement is to force plaintiffs to have the support of a medical expert willing to state that negligence has occurred before putting the health care provider through the expense of defending a lawsuit. Unfortunately, the real purpose of the rule has been completely twisted and distorted. Numerous court decisions have been issued, which have the intended effect of dismissing meritorious medical malpractice claims on extremely onerous procedural technicalities. The defendant health care provider can file an interlocutory appeal if it loses on a motion to dismiss based on the "insufficiency" of the Chapter 74 reports. This not only stalls the case, but if the plaintiff loses on appeal, he is then responsible for paying the health care provider's attorney's fees.

In Texas, the cards are stacked in favor of the health care industry. Like many other caring and experienced medical malpractice attorneys, I am forced to turn people away every day because of this reform.

The True Effect of Damages Caps
Texas lawmakers brag that they have brought more doctors to Texas because of these caps. True, more doctors have come to practice in Texas, but recent census data show that the ratio of doctors to patients has not changed from pre-reform levels. More doctors have come to Texas, because the population of Texas has grown.

The effectiveness of these caps has been debated for years. Those in favor of medical malpractice reform argue that medical care costs are driven down when non-economic damages caps are in place. But the evidence out of Texas shows that this is simply not true. According to a Kaiser Family Foundation study, medical costs in Texas continue to rise. The national average growth rate for medical costs is 6.7 percent, while Texas is averaging a growth rate of 7.4 percent.

Meanwhile, insurance company profits have increased an average of 45 percent in states that have caps on medical malpractice damages. By inciting outrage through a public relations campaign that proclaimed the United States was experiencing a "medical malpractice crisis," insurance companies were able to reduce payouts on liability insurance and increase the cost of health care, thereby increasing their profits.

What seems to be happening in Texas is that insurers are benefitting from damages caps, while patients continue to suffer. Doctors are paying out less from medical malpractice liability policies when sued, and insurance companies are collecting on higher premiums. Despite the fact that insurance companies are doing relatively well in this down economy, they continue to lobby state legislatures, including Texas, to pass tort reforms that will enhance their bottom lines.

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Don't hesitate to contact Kay Van Wey at (800)489-5082 for a free, no obligation consultation.

Van Wey Law serves:

The entire state of Texas, including Dallas, Plano, Frisco, McKinney, Fort Worth, Austin, Houston, and San Antonio

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