How Tort Reform Continues to Victimize the Victims

Connie Spears has the bad luck to live in Texas. Her story, as recounted by the New York Times/Texas Tribune is another sad reminder of how the powerful forces behind so-called “tort reform” continue to deprive people harmed by medical mistakes of their rights. And Texas leads the way.

In 2010, Spears arrived at a Christus Santa Rosa hospital emergency room with severe leg pain. She told the medical staff about her history of blood clots. They diagnosed a less serious disorder and sent her home. Within days, Spears landed in another hospital with a severe clot and extensive tissue damage. To save her life, they amputated both of her legs.

But thanks to Texas’ tort reform laws, Spears is not only unable to be compensated for her damaged health, she’s liable for paying the legal bills of the defendants she sued for malpractice.

As The Times explains, Texas law caps noneconomic damages that a plaintiff-Spears, in this case-can receive for medical malpractice at $250,000. Of course, no amount can compensate for the loss of one’s legs, but at least it’s an acknowledgment of error.

But the law also establishes a “willful and wanton” negligence standard for emergency care, which means that the patient must prove that he or she was harmed almost intentionally.

The law also requires that medical witnesses for the plaintiff must practice or teach in the same specialty as the defendant. If plaintiffs don’t supply these expert reports within 120 days of filing their cases, they’re on the hook for defendants’ legal fees.

Many potential lawyers rejected Spears’ case because they were afraid they wouldn’t be able to meet the state’s negligence standard. It took her two years find someone.

Then, her lawyer couldn’t find an expert witness by the report deadline, so the judge ordered her to pay thousands of dollars to cover some defendants’ legal bills. Spears had exhausted her retirement savings, and now she might lose her home. And she’s the one who lost her legs because somebody else screwed up.

How is this justice, much less mercy?

Tort reform proponents sing the same off-key tune-they say it prevents “frivolous” lawsuits that clog the system and raise the costs for everybody. In Texas, they say such pro-business measures attract more medical professionals to a state that desperately needs them.

That’s bunk. As noted on Pop Tort, a civil justice website sponsored by the Center for Justice & Democracy, such laws protect “the ‘psychic’ damage to physicians (who have well-paid insurance lawyers defending them, by the way), than the horrifying actual damage caused by negligent care, killing 98,000 people every year (at least), plus brain injury, blindness, quadriplegia, misdiagnosed cancer, the death of a child, … How about the fact that the vast majority of preventable errors that physicians commit never result in a claim at all? … Shouldn’t we be far more concerned about what happens to patients like Ms. Spears in states like Texas?”

As Pop Tort says, more than 8 in 10 doctors have never had a medical malpractice payment. So the vast majority of good doctors get lumped in with the few repeatedly poor practitioners in order to achieve an “average” that tort reformers suggest reflects the real world. Consumers-and lawmakers-are misled into believing that all doctors fear spending valuable time fighting claims.

“Nothing today prevents insurers from settling legitimate claims with patients before they file a court case or from paying valid claims expeditiously,” says Pop Tort. “Yet they do not. Insurers hold onto money as long as possible. They deny, delay and defend claims even when their clients are clearly at fault. And why shouldn’t they in states like Texas, where patients will never win?”

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