Under the guise of controlling rising healthcare costs, the Texas legislature began passing laws in the early 2000s claiming that they “reformed” the legal system to discourage frivolous lawsuits. In reality, medical malpractice tort reform discouraged frivolous medical malpractice lawsuits by making all medical malpractice lawsuits more expensive and risky for lawyers to pursue. The sweeping laws effectively threw the baby out with the bath water.
Tort reform discourages medical malpractice lawyers from filing lawsuits by hazards and impediments to many legitimate cases so that the victims have an impossible time finding a Texas medical malpractice attorney who can justify the case when he does a simple cost/risk analysis. Tort reform accomplished its goal in two main ways:
- By requiring an expensive upfront expert report, and;
- By imposing damage caps on non-economic damages to make the recovery not worth the risk and/or cost.
The Expert Report Trap
One of the traps that unaware victims may fall into when trying to bring a claim on their own is the expert witness trap. In 2003, the Texas legislature created Chapter 74 of the Texas Civil Practice and Remedies Code. Chapter 74 reclassified medical malpractice cases as “healthcare liability claims” and imposed a duty on the part of the claimant to file an expert report within 120 days of filing the lawsuit. The report must be drafted by a qualified expert (or experts if there are multiple needed for different medical providers from different fields). The report must establish what the medical standard was that the provider violated and how they violated it. Failing to time file a report from a qualified expert witness will result in your case being dismissed and your claim being forever barred.
Finding an expert can often be difficult. Especially if you have brought your claim against multiple parties such as a hospital, a surgeon, and a nurse who all missed a diagnosis or overlooked a surgical error. Attorneys often have to look outside the state to find doctors who will testify against Texas doctors thereby making the time and expense of the expert more costly. It can cost $10,000 or more just to get the case reviewed and a report written. Thus, the lawyer has to feel pretty sure there was negligence before he spends the money on having the case reviewed by an expert.
Additionally, the medical expert who reviews the case may take months to do so and then conclude that he does not find negligence. If your lawyer does not have an expert report supporting his case before filing suit, he may find himself in a serious time crunch when the first expert he retains to evaluate the case has a negative opinion. It really puts the lawyer in a bind to find a new expert or risk facing a legal malpractice lawsuit by his own client for not having one to submit in time.
The Damages Caps Obstacle
In Texas, Tort Reform placed severe restrictions on the damages that a victim may recover. There are two types of damages that you may seek in a personal injury case: economic damages and non-economic damages. Economic damages include things like lost wages, medical bills, and other damages that are easily assigned a monetary value. Non-economic damages include things such as pain and suffering and physical impairment. These are intangible damages whose value has historically been assigned by the jury.
Under Chapter 74, the victim’s damages are limited to a total recovery of $250,000 for non-economic damages. This is where the big numbers in a verdict typically come from. If a doctor is negligent and injures a patient, they may not have a lot of bills associated with the injury, but it could lead to a lifetime of suffering. That lifetime is capped at a value of $250,000 for ALL non-economic damages.
While $250,000 doesn’t sound like that low of a number, the costs of hiring an expert to do a report and then come testify live about it can run in the five to six-figure range easily. Add all the other costs of preparing and trying the lawsuit and spending $100,000 to try the case is not uncommon in the medical malpractice realm. A lawyer is not going to risk $100,000 of his money to possibly win $250,000. That $150,000 “profit has to compensate the client, pay off any medical bills, reimburse the litigation expense, and somehow afford the lawyer an attorney fee. It is a high risk for a low return.
The end result of the cap is that lawyers look largely for cases with high economic damages. Things that can driver that number (the part that isn’t capped) include:
- A need for extended future or lifetime medical care and/or living assistance,
- An inability to continue to earn a living.
Cases that often do not have the above types of damages are often left with extreme difficulty finding a lawyer. These cases often include those of housewives and the elderly who don’t have a wage loss claim and do not require future medical care despite having suffered a legitimate injury.
In addition to the above tort reform obstacles, there were already other obstacles as:
- Strict (and often as short as 30 days) notice requirements on government-operated hospitals that can result in a claim being barred.
- Low damage caps on government-operated medical facilities.
- The two-year statute of limitations (for adults) on personal injury claims.
- Strict limitations on the amount of punitive damages a jury can award.
- A requirement of a unanimous jury finding of gross negligence for punitive damages to be awarded to recover punitive damages.
Conclusion
Failure to understand and plan for each of the obstacles listed above can destroy an otherwise valid medical malpractice claim. Never wait until the last minute to talk to a lawyer about your rights. Make sure you hire a skilled medical malpractice lawyer in Houston, TX who can help you steer clear and use the law to your best advantage.
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