The Effects of Tort Reform in Texas

For two years, Connie Spears struggled to obtain legal representation. Why? It is because of her quest for simple justice against those who wronged her and put her life at risk began in Texas, in the field of medical negligence. Such is life, these days, for Medical Malpractice victims in the state of Texas.

When Ms. Spears arrived at the emergency room with severe leg pain, she claims she advised doctors of her history of blood clots, but doctors sent her home with little concern. A few days later, swollen and delusional, Ms. Spears was taken by ambulance to a different hospital where doctors found severe clots and extensive tissue damage. With her life at risk, doctors amputated both legs above the knee.

This seems to be a case worthy of investigation, doesn’t it? So, it begs the question: Why can’t Spears get a lawyer to take her case? The answer, of course, is that Texas Governor, Rick Perry, and his Republican cronies in the Texas legislature have proffered measure after measure to assist bad doctors and limit damage recoveries, in court, for seriously injured and disabled Texas citizens. They call this exercise “tort reform”. What it should be called is a corporate bailout of medical professionals and their billion dollar insurance carriers at the expense of the taxpayers and those Texas citizens who received “care” that was so substandard that it ruined their lives. Ask Connie Spears.

Not only do Texas tort reform laws limit non-economic damages at $250,000 for life altering negligence, they also require 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 before trial. And they only give a plaintiff a short time window to do it. If a plaintiff fails to produce adequate expert reports within 120 days of filing the case, he/she is liable for defendants’ legal fees. Tort reformers say this is the only way to curb “frivolous lawsuits.” This “frivolous lawsuit” argument is standard jargon for those seeking to benefit corporations and punish seriously injured citizens. Does Connie Spears’ case sound frivolous to you?

Ms. Spears finally located and persuaded an attorney to represent her, but the case fell apart under the aforementioned expert-witness rules. It is very difficult to quickly find one doctor to testify against another; there is a considerable conspiracy of silence in the medical community when it comes to medical malpractice cases. To add insult to injury, Ms. Spears was ordered by a judge to pay thousands of dollars to cover the defendants’ legal bills. Her retirement savings are almost gone and her husband is out of work. This is the kind of impact “tort reform” has on innocent victims.

The same day that the Spears article was published, another article was printed in the Times, “The Drawn Out Process of the Medical Lawsuit,” by Pauline Chen, M.D. The focus of this article is that “doctors have started to shift their focus from the financial aspects of malpractice to the untold hours spent focused on lawsuits.” Funny, anyone familiar with this type of litigation will tell you that it is the medical defense tactics, the delays, the denials, and the refusal to offer reasonable compensation in these cases that cause “untold hours spent focused on lawsuits”. Want to shift the focus, doctors? Try focusing more on patient safety and less on lobbying legislatures for bailouts that put all patients at greater risk. Tell Connie Spears, who will never walk again, that medical malpractice cases take up too much of your time. What about her monumental struggle? Her pain? Her time? Her justice?

Nothing prevents healthcare providers and insurance companies from acknowledging a medical mistake and providing a reasonable offer of compensation without the necessity of a contentious lawsuit. It is the medical professionals who draw lines in the sand, who seek legislative protections, and who continuously and unreasonably deny, delay, and defend claims, even when they are clearly at fault. “Tort reform” has never been about reducing “frivolous claims”, a favorite tag line of the medical and insurance industries. It has always been about limiting access to the courts and reducing awards in serious claims, like those pursued by Connie Spears and countless others who have been shut out of the system by these anti-citizen crusades to bail out the wrongdoers.

Patient safety and medical error reduction and/or prevention should be the focus of pro-citizen legislatures. Restricting legal recourse will only protect the negligent wrongdoers. Until patient safety is the first priority, malpractice lawsuits and trial lawyers are the victims’ only hope.

There is no amount of money that would compensate Ms. Spears for being confined to a wheelchair for the rest of her life. At the same time, compensation for pain, suffering and future care as well as punishment to the wrongdoer must be part of a pro-safety, pro-citizen model. There is no reason, none, to immunize doctors from the damage they cause due to negligence. And, when plaintiffs are not fully compensated, when victims like Ms. Spears can no longer sustain themselves financially, the burden is placed on the taxpayers in the form of Medicare, Medicaid and assistance programs. In the battle for compensation in medical malpractice cases, who should be responsible for the future care of the disabled? Should the doctor who caused the disability be responsible or should responsibility fall on the taxpayers? What the Rick Perry’s of the world are not telling you is that the “tort reform” that they so proudly tout shifts the burden to the taxpayers and we all pay that “hidden” tax while the doctors and the insurance companies laugh at us, all the way to the bank.

Mark Bello has thirty-six years experience as a trial lawyer and fourteen years as an underwriter and situational analyst in the lawsuit funding industry. He is the owner and founder of Lawsuit Financial Corporation which helps provide cash flow solutions and consulting when necessities of life litigation funding is needed by a plaintiff involved in pending, personal injury, litigation. Bello is a Justice Pac member of the American Association for Justice, Sustaining and Justice Pac member of the Michigan Association for Justice, Member of Public Justice and Public Citizen, Business Associate of the Florida, Mississippi, Connecticut, Texas, and Tennessee Associations for Justice, and Consumers Attorneys of California, member of the American Bar Association, the State Bar of Michigan and the Injury Board.