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| Shapiro, Washburn & Sharp

In 2003, Texas passed sweeping tort reform legislation that capped non-economic damages that an injured victim could receive from a medical malpractice injury claim to only $250,000 and set an extremely difficult “willful and wanton” negligence standard in an emergency care setting. This means an injured victim has to establish that a doctor or medical personnel intentionally harmed them to obtain damages. If that wasn’t harsh enough, the 2003 law also required victims to find a practicing or teaching physician in the same specialty as the allegedly at-fault doctor to serve as an expert witness and to demonstrate evidence of negligencebefore a trial, according to the New York Times. The final “cherry” on top of this tort reform pie was requiring victims to pay for a doctor’s legal fees if they fail to produce adequate expert reports within 120 days of filing their medical malpractice injury claim.

Texas residents are now feeling the effects of this awful law. For example, the New York Times article highlighted the injustice Connie Spears is struggling with right now. She sought treatment at a Christus Santa Rosa hospital emergency room in 2010. She had serious leg pain and informed medical staff at the hospital that she had a history of blood clots. What was the response? Doctors sent her home with a non-serious diagnosis. A few days passed before Connie had to be taken, by ambulance, to another hospital where doctors found a severe blood clot and extensive tissue damage. The result? She had to get both legs amputated above the knee.

You’d think for someone in Connie’s situation, the laws would be designed to help her seek some semblance of justice. Obviously, no amount of money would ever be able to compensate for losing both legs and being relegated to a wheelchair for the rest of her life. Unfortunately, the Texas tort reform laws are geared towards helping negligent doctors and insurance companies. Connie told the New York Times how the tort reform law made it virtually impossible to find a medical malpractice lawyer and led to a judge ordering her to pay thousands of dollars to cover the legal bills of the defendant in her case.

What’s happening to Connie, and what’s happening to possibly thousands of other Texans, is simply outrageous. What wrong did they commit? Why are innocent victims being penalized and forced to go through a myriad of legal hoops before having her case heard before a judge and/or jury?

I practice medical malpractice injury law in Virginia and some state legislators in the Commonwealth have talked about emulating Texas tort reform laws. I have to be honest – they are flat out wrong. The Texas tort reform laws are definitely not the model for Virginia, or any other state for that matter. The law is based on a flawed premise – if you simply make it more difficult for lawsuits to be filed and cap damages, overall health care costs will decrease. The problem is that empirical evidence shows that this premise is wrong and placing the burden on victims will not actually reduce health care costs. In fact, studies have shown that the 2003 Texas tort reform law didn’t reduce health care costs (click link to read more).

There are policies we can implement that will actually address reducing health care costs. For example, moving away from the fee-for-service model, reducing the number of preventable medical errors, and addressing chronic diseases that account for the largest percentage of health care spending – diabetes, lung disease, and obesity. Making it more difficult for victims to file legitimate medical malpractice injury claims and capping damages is not the proper prescription.

About the Editors: Our personal injury law firm has offices in Virginia (VA) and North Carolina (NC). The attorneys with the firm publish and edit articles on three Legal Examiner sites for the geographic areas of Virginia Beach, Norfolk and Northeast North Carolina as a pro bono service to the general public.


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