A recent Dallas Business Journal article (2/4) reports, “A house bill that passed the Texas Legislature in 2003 is now receiving credit for getting emergency physicians back into the ER” and “the Texas College of Emergency Physicians held a press conference in Austin on Tuesday, thanking lawmakers for the passage of House Bill 4 six years ago — a move they credit for establishing the tort reforms needed to revamp medical malpractice suits in a fashion that would encourage more physicians to practice emergency medicine in the state.”
Before you shout and holler praise for the good work of the legislature, understand what the new law means to you and your family members, if they are treated in an emergency room.
The 2003 changes to medical malpractice law severely restricted damages recoverable in medical malpractice cases. With the exception of lost wages and medical expenses, the recovery is capped at $250,000 in most cases. That may sound like a lot of meny, but that number was set low enough to discourage lawyers from taking these cases. Most seasoned lawyers will not even look at a medical malpractice case unless there is a death or permanent disability of a wage earner, or a catastrophic injury resulting in enormous future medical care costs. Most cases involving injuries to or deaths of the elderly, children, stay-at-home moms, or injuries that do not diminish the ability to work are falling by the wayside. When you spend up to $50,000 or more developing a case, and then charge a client a fee for your time and effort, even with a victory, no one is happy. Since the fee and expenses are contingent, if the case is lost, the lawyer eats the expenses and gets nothing for his time.
Medical malpractice cases have a high failure rate. The 2003 laws impose huge procedural hoops lawyers must jump through to get a case to a jury. Juries often exonerate malpractice defendants who are clearly at fault, often because they feel doctors should not be held civilly liable unless there was an evil intent. That is not the law, but juries have been known to take the law into their own hands. Numerous counties in Texas have never had a verdict in favor of a malpractice plaintiff. Ever. And the record of our Supreme Court of Texas is dismal in reversing jury verdicts for patients.
The ER provision of the 2003 laws gives doctors, nurses and others who provide emergency care in a hospital an immunity for their negligence. To win an ER case, you must prove the doctor, nurse or other provider is guilty of “willful and wonton negligence.” This is a “gross negligence” standard. Most lawyers who look at these cases have thrown up their hands and concluded that, absent the most egregious of circumstances, emergency care providers get a freebie. When you or a loved one goes into an ER, you are truly on your own.
That may sound great for hospitals trying to recruit ER doctors. However, this law does nothing to protect patients or foster higher standards in emergency care.
There were other solutions available to resolve the “malpractice crisis” the doctors, hospitals and insurance industry convinced many Texans existed. Among them would have been requiring greater quality control in hospitals; increasing enforcement of medical, nursing and hospital standards; and requiring every practitioner have adequate liability insurance coverage, offered at reasonable rates by companies that profit greatly from writing other forms of casualty insurance. Finally, if a cap on damages was deemed necessary, that cap should have been set high enough to allow victims to find lawyers to take their cases.
The 2003 changes to medical malpractice law may have enhanced the practice of medicine in Texas (although there are many disagreements on that point). Regardless of whether or not that is true, the price paid by Texans who are consumers of medical services was too extreme, as the bar for winning a lawsuit has been raised too high, and the damages that are recoverable have been set too low.
If you believe some sanity must be restored to medical and hospital negligence law in Texas, start by contacting your state senator and representative. Tell them you want changes made that will protect consumers. If they do not go to bat for those changes, vote for others who will.
Steve Waldman – swaldman@gwlawyers.com
