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News // January 25, 2013 MAAC Staff

Texas Tort Reform Is Hurting Texans

By most measures, no state has embraced the “tort reform” cause more than Texas. There’s not much further Texas can go, short of banning personal injury lawsuits altogether. Now some Texans are paying a price.

In 2010, Texan Connie Spears sought relief from leg pain at a south Texas hospital emergency room. She told the ER doctors she had a history of blood clots. The doctors decided something else was causing her pain and sent her home without treatment for blood clots.

Ms. Spears’s condition grew worse, however, and a few days later she was admitted to another hospital with severe damage caused by a blood clot. The doctors had to amputate her legs to save her life.

As reported in the Texas Tribune, Ms. Spears life was upended by more than the loss of her legs. Medical negligence took her legs, and now Texas “tort reform” laws have taken her retirement savings and possibly her home.

Struggling with her new life in a wheelchair, Ms. Spears understandably wanted to receive some compensation from the hospital that failed to give her the treatment she needed. But because of Texas law, one lawyer after another refused to take her case.

Why? Texas law has made it nearly impossible to find emergency room personnel guilty of malpractice. To win a lawsuit, the plaintiff has to prove that an emergency room physician intended to cause harm. Just being negligent or careless or incompetent or incapacitated doesn’t count. And, obviously, it’s just about impossible to prove what the doctor intended, since it is unlikely anyone would write “let’s harm this patient” on a chart.

Emily Ramshaw wrote for the New York Times (”State’s Tort Reform Makes Lawyers Wary of Taking on Patients“), “Malpractice lawyers say this is a near-impossible threshold to meet. ‘You’d have to be a Nazi death camp guard to meet this standard,’ said Jon Powell, a malpractice and personal injury lawyer based in San Antonio.”

Eventually Ms. Spears found a lawyer who would take the case. But the case stumbled over another provision in the Texas tort reform law.

Texas tort law says the plaintiff must find a practicing or teaching physician in the same specialty as the defendant to serve as an expert witness. If the plaintiff fails to produce such a witness within 120 days of filing a suit, the plaintiff not only loses the case but must also compensate the defendant for his legal expenses.

Ms. Spear’s attorney produced an expert witness report that, apparently, failed to meet the requirements of the law. And he could not produce another one within the 120 days. And a judge ordered Ms. Spears to pay thousands of dollars in compensation to the defendants in the case. Now her retirement savings are gone, and she is afraid she will lose her home.

Texas politicians and “tort reform” organizations — largely “astroturf” groups funded by industries trying to evade liability — claim that tort reform has reduced health care costs and brought more physicians into Texas. Independent analysts say both claims are false. Texas tort reform laws have not lowered health care costs and have not increased the number of physicians opening practices in Texas. And you can bet that it isn’t improving the quality of medicine, either.

Tort reform laws are not just about malpractice. Any of us might be injured by a product we buy or in an unsafe workplace. The most injured, such as people who suffer mesothelioma from exposure to asbestos, really need what damages they might receive to take care of themselves and their families.

Ms. Spears says she used to take care of her elderly mother. Now she needs assistance herself, just to shower and go to the bathroom. Texas is taking that away from her.