As reported recently in the media, Connie Spears visited Christus Santa Rosa hospital emergency room in 2010 with severe leg pain. What she thought was an uncomplicated emergency room visit later turned into a medical and legal nightmare. Like many people in the United States she is a victim for what has been touted as “tort reform.” Corporate wrongdoers who injure people every day have paid lobbyists in state legislatures to cap the pain and suffering damages which have to be paid, instead of a flexible system. Conservative republican legislatures are implementing ridiculously low “one size fits all” caps on pain and suffering.
During her first visit to the Santa Rosa emergency room, Ms. Spears informed the medical staff members about her history of blood clots. Regardless of the information Ms.Spears provided, doctors sent her home with a far less grave diagnosis. Just days after the misdiagnosis, Ms. Spears was taken by an ambulance, swollen and delusional, to another hospital. It was then where doctors found a severe clot and extensive tissue damage. With her life on the line, Ms. Spears had to have both legs amputated above the knee. This was an easily preventable injury. Obviously, lower damage caps mean doctors will not be as careful. In Florida, for instance, doctors only have to carry $250,000 in liability insurance by posting a bond.
Nearly three years later, in a suit against Christus Santa Rosa Hospital for medical malpractice, Ms. Spears faces a disheartening issue. Due to the state of Texas tort reform laws, Ms. Spears was unable to find a malpractice attorney and was forced to pay thousands of dollars to cover the defendant’s legal bills.
Texas Reform tort law has capped non-economic damages that a plaintiff could receive for medical malpractice at $250,000 and set a “willful and wanton” negligence standard, interpreted as intentionally harming the patient, for emergency care. It also requires 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 a trial. Under the more stringent rules, if plaintiffs fail to produce adequate expert reports within 120 days of filing their cases, they are liable for defendants’ legal fees.
Supporters of the tort reform laws claim that this is the only way to avoid frivolous lawsuits against healthcare providers and increase the number of medical professionals in Texas. However, “frivolous” is a made up notion, a common misconception fostered by insurance companies. In fact, studies show that the worst victims of medical malpractice never get lawyers, and only 5% of medical malpractices victims ever seek legal advice.
Ms. Spears was unable to obtain legal representation because lawyers did not want to face the hurdle of Ms. Spears case not meeting Texas’ new negligence standards. In an attempt to prevail in the heart of justice, Justin Williams, a Corpus Christi lawyer, eventually took the case. Unfortunately, the case fell apart under the new expert-witness rules. After the first attempt at an expert-witness report failed to identify the proper defendants, Mr. Williams said, he was unable to find another expert witness in a time frame that would satisfy Texas’ requirements
Here at the Rheingold firm, we strive in litigation similar to Ms. Spears’ to find the best possible forum to fight for the justice our clients deserve. We fight alleged “reform” legislation that is submitted in the dark of night or buried in other legislation, a common practice by business interests in New York State. Instead of promoting efficiency in the legal system, tort and medical malpractice reform is cheating negligence and medical malpractice victims from the opportunity to compensate for medical errors, which some people, like Ms. Spears, must sadly be reminded of everyday of their lives. Whenever you hear “tort reform,” what you are hearing is another “corporate wrongdoers protection act!”
