Life in Texas After Tax Tort Reform

In every state that has passed "tort reform," horror stories abound about how injured patients and the survivors of those who have been killed by medical malpractice can't get their day in court.

While the enemies of justice peddle caps on damages as a "reasonable" limitation on jury verdicts for pain and suffering, what they don't tell you is that caps will effectively eliminate cases brought by the most vulnerable members of our society - women, children, the elderly (who have the highest exposure to the health-care system), minorities and developmentally disabled people. That's because cases involving those folks don't involve much, if any, economic damages. With recovery of non-economic damages capped at an artificially low number like $250,000, those people won't be able to find a lawyer to take their cases because the maximum recovery won't even cover the law firm's out-of-pocket costs to develop the case. Like so many other draconian policy proposals by the conservative right, rich white guys will do just fine with caps on non-economic damages, but the rest of us will be out in the cold.

On Sunday, The New York Times did a piece exposing the results of "tort reform" in Texas, which now requires injured patients and their families to prove "wanton and willful" negligence in order to sue an ER physician. Here's an excerpt:

For the entire story, http://www.saynotocaps.org/newsarticles/statestortreformlaw.htm

The tort reform that state lawmakers passed in 2003 made it more difficult for patients to win damages in any health care setting, but especially emergency rooms. It capped medical liability for noneconomic damages at $250,000 per health care provider, with a maximum award of $750,000.

Less well known was new language to safeguard under-the-gun emergency room doctors from civil damages unless it could be proved that they acted with “willful and wanton” negligence — that they not only put the patient in extreme risk but knew they were doing it.

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.