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Texas Tort Reform can Bankrupt You

The U.S. Constitution gives Americans the right to go to court.  But it doesn’t always work that way in Texas since the state enacted tort reform in 2003.  After that, severely injured patients began having trouble suing doctors and hospitals.  Some cases never got to court at all.

By 2012, Tort Reform was under fire as stories began to mount about injured patients unable to get relief from the courts.  One well-researched critique came from a conservative source.  On April 26, 2012, Fox News in Dallas ran a story - “Tort reforms limit options for some Texans”  - about severely injured patients who “all hit the same brick wall” when they or their families tried to go to court.

Tort reform supporters say it limits “frivolous lawsuits” that were costing doctors and hospitals millions of dollars every year, bankrupting them or driving them out of Texas.  Opponents of tort reform say it protects bad doctors and negligent nursing homes and hospitals.

No doubt, tort reform in Texas creates a laborious, expensive process that victims must traverse before they can get into court to present their cases to a judge and jury.

In 2010, The New York Times published a story about Connie Spears, a 54 year old San Antonio woman whose legs had to be amputated after an emergency room doctor at one of the city’s hospitals misdiagnosed her condition.  According to the New York Times account (“State’s Tort Reform Makes Lawyers Wary of Taking on Patients”) Spears says she “…told medical staff members about her history of blood clots.  Doctors sent her home with a far less serious diagnosis.”  Three days later, another hospital had to amputate both her legs above the knees to save her life.

No judge or jury ever heard the case Spears tried to bring against the first hospital.  It never went to court because Spears didn’t meet the strict tort reform requirements after she filed suit.  She was then ordered to pay some of the hospital’s legal bills.

What is the process that kept Spears out of court and then ordered her to pay the legal fees of the hospital she tried to sue?

First, she had to find a lawyer who would take her case.  That took two years.  Medical malpractice cases take time and personal injury lawyers don’t charge by the hour.  They take a percentage of the client’s settlement at the end of the case.  So they could work for months, or a couple of years, without pay.  If they lose the case, the client owes them nothing.  If they take the case, they may have to pay its legal expenses until the case is resolved.

That can be costly.  The lawyer must find medical experts, in the field of medicine being challenged, to report on the alleged failures of the doctor or hospital in question within the strict time frame that tort reform allows.  Once in hand, the reports go before a committee that decides whether the patient has a case or not.  If the committee rules the reports inadequate, or otherwise deficient, the lawyer has a limited amount of time to locate new experts and file their reports.

If the lawyer cannot secure new expert reports within the time that tort reform allows, the client automatically loses the case without ever being allowed to present the case to a judge and a jury.

A story in The Texas Tribune summed up Spears’ situation in an article on January 25, 2013:

”Despite Counsel, Amputee Hindered by Tort Laws”

“The massive tort reform package that Texas lawmakers approved in 2003 capped noneconomic damages a plaintiff can receive for medical malpractice at $250,000 and set a ‘willful and wanton’ negligence standard – interpreted as intentionally harming the patient – for emergency care.  It also required plaintiffs to find a practicing or teaching physician in the same specialty as the defendant to serve as an expert witness, and to demonstrate evidence of negligence ahead of a trial.  Under the strengthened rules, if plaintiffs fail to produce adequate expert reports within 120 days of filing their cases, they are liable for defendants’ legal fees.”

In Spears’ case, the Catholic hospital in San Antonio waived the fees she was ordered to pay it for its legal expenses.  By then, she had tapped into her retirement savings and with her husband out of work, she was afraid they would lose their home.

Sound fair to you?