resentative Burgess says. Physicians must practice defensive medicine in fear of being second-guessed by trial lawyers, re- sulting in millions of dollars in unnecessary tests, procedures, and imaging. Furthermore, seasoned medical professionals are retiring early because staying in practice is no longer fi- nancially feasible, further contributing to the nation’s doctor shortage, he adds. The legislation mirrors the tort reforms Texas passed in
2003. “Texas has led the nation in medical justice reform and is now a model state for what successful tort reform looks like,” Representative Burgess said. “Unfortunately, only a few states have followed suit, leaving too many Americans trapped in a system that is harmful to patients and doctors.” HR 896 has been referred to the House Judiciary Subcom- mittee on the Constitution. Dr. Butler says Texas physicians can rally around national
tort reform legislative efforts by communicating with their rep- resentatives and senators. “Advocacy and grassroots efforts are so important at the na- tional level. We need to tell lawmakers that Texas’ tort reforms work; they don’t limit people’s access to courts, and they do help prevent frivolous lawsuits,” he said.
Favorable Supreme Court rulings Mike Hull, JD, TAPA general counsel, says the organization continues to monitor how the courts interpret HB 4. “The trial lawyers consistently and persistently advocate in favor of positions rejected by the legislature, positions that would reduce access to medical care,” Mr. Hull said. TAPA, with support from TMA and other health care groups, has defended the reforms so far. On July 1, the Texas Supreme Court upheld the “paid or
incurred” provision in HB 4 in the case Haygood v. Escabedo, which stemmed from a traffic accident. The law allows pa- tients in a medical liability lawsuit to recover only what they actually owe for a medical service, not the amount billed. Writing for the majority, Justice Nathan Hecht said the
Texas Civil Practice & Remedies Code “provides that ‘recovery of medical or health care expenses incurred is limited to the amount actually paid or incurred by or on behalf of the claim- ant.’ We agree with the court of appeals that this statute limits recovery, and consequently the evidence at trial, to expenses that the provider has a legal right to be paid.” Mr. Hull said the court upheld the law as written.
“Trial lawyers have been trying to get the ‘paid or incurred’ law either struck down or construed in a way that makes it useless,” Mr. Hull said. Last August, the Texas Supreme Court issued an opinion
in Marks v. St. Luke’s Episcopal Hospital that disqualified the plaintiff, Irving Marks, from damages because he failed to obtain a timely report on a broken bed. He alleged the bed caused him to fall while recuperating from back surgery at the Houston hospital. The court held Mr. Marks’ claim constituted a health care li- ability claim, not a simple negligence claim. The court’s ruling
reversed a 2009 decision that medical liability law didn’t cover Mr. Marks’ claim. Mr. Marks argued he should be allowed to claim unlimited damages. Ultimately, the court determined Mr. Marks’ case falls un-
der Texas’ medical liability law, which caps noneconomic dam- ages at $250,000 and requires a timely expert report. In other words, medical liability and simple negligence cases can’t be packaged as a dual claim to dodge the expert report require- ment or to sidestep the noneconomic damage cap. TAPA filed a brief that aided in a favorable outcome in the case. Mr. Hull says the Marks case represents an effort by trial lawyers “to poke holes in what constitutes a health care li- ability claim.” “The Marks case supports access to care by upholding the
broad standard that a medical expert report is required in all medical liability cases,” he said. “The trial lawyers want to limit access to care by poking holes in the laws requiring ex- pert reports.” Last March, the Texas Supreme Court ruled that a Texas woman who discovered a sponge was left inside her during a hysterectomy didn’t have the right to sue the hospital and doc- tor because the error wasn’t detected for more than 10 years. TAPA, TMA, and the Texas Hospital Association filed a brief in the case, Methodist Healthcare System of San Antonio v. Rankin. The court held the 10-year statute for health care liability claims is constitutional and doesn’t violate the open courts provision of the Texas Constitution.
And at the federal court level, a class action lawsuit filed
in February 2008 in Marshall attacks the constitutionality of Texas’ $750,000 cap. Attorneys for individuals involved in 11 ongoing legal cases consolidated them into one class action suit, Emma Watson, et al. v. Hortman, et al. Defendants included health care professionals and trial court judges named as class representatives who enforce the cap under Texas law. The lawsuit alleged the noneconomic damage cap violates the following provisions of the U.S. Con- stitution: right to trial by jury, right to petition, right to due process, and equal protection. TAPA, of which TMA is a charter member, coordinated the defense for the lawsuit’s challenge of the constitutionality of the noneconomic damage cap. The plaintiffs assert that HB 4 violates the Fifth Amend- ment. They allege that the state effectively “commandeers” medical liability plaintiffs’ fair and proper compensation for noneconomic injuries that exceed the damages limitations. The plaintiffs contend that capping jury awards dispropor- tionately affects the young, old, poor, and unemployed. They maintain that the costs to litigate a medical liability suit are ex- traordinary, and that the limitation on noneconomic damages presents a financial barrier to some claimants who attempt to access the courts. At press time, TAPA was waiting on a ruling by the judge. “TAPA continues to support access to care against all attacks by the trial lawyers. No medical liability cap has ever been finally held to be unconstitutional under federal law,” Mr. Hull said.
September 2011 TEXAS MEDICINE 17
Page 1 |
Page 2 |
Page 3 |
Page 4 |
Page 5 |
Page 6 |
Page 7 |
Page 8 |
Page 9 |
Page 10 |
Page 11 |
Page 12 |
Page 13 |
Page 14 |
Page 15 |
Page 16 |
Page 17 |
Page 18 |
Page 19 |
Page 20 |
Page 21 |
Page 22 |
Page 23 |
Page 24 |
Page 25 |
Page 26 |
Page 27 |
Page 28 |
Page 29 |
Page 30 |
Page 31 |
Page 32 |
Page 33 |
Page 34 |
Page 35 |
Page 36 |
Page 37 |
Page 38 |
Page 39 |
Page 40 |
Page 41 |
Page 42 |
Page 43 |
Page 44 |
Page 45 |
Page 46 |
Page 47 |
Page 48 |
Page 49 |
Page 50 |
Page 51 |
Page 52 |
Page 53 |
Page 54 |
Page 55 |
Page 56