Tort reform prevails in court
lthough tort reform drew additional physicians to Texas and had other positive effects on the state’s health care system, the favorable liability en- vironment is in danger from forces seeking to overturn it. Legal challenges have come in federal and state courts. TMA, the Texas Alliance For Patient Access (TAPA), and other organizations coor- dinate efforts and file legal briefs to support tort reform’s provisions and protections. So far, tort laws have weathered several legal trials. Mike Hull, TAPA general counsel, says many factors contribute to the ability of
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tort reform’s provisions to withstand challenges at the state and federal court levels. “There has been a concerted effort by the voters to elect judges who favor a level judicial playing field. Additionally, TAPA, TMA, and the medical community have been proactive in defending tort reform against court challenges. Finally, our legis- lators have been very interested in passing laws that will sustain court challenges,” he said.
While Texas’ tort laws have proven resilient, that hasn’t stopped trial lawyers
from attempting to weaken or dismantle them. They tried to strip away emergency medical protections embedded in tort law. An appeals court decision this year af- firms tort reform’s heightened “willful and wanton” standard of proof in cases in- volving emergency care. The higher standard for liability requires trial attorneys to show gross, rather than simple, negligence. In Amber and Anthony Gardner v. Children’s Medical Center of Dallas, attorneys
argued the heightened standard of proof violates the equal protection clauses of the Texas or U.S. constitutions. The jury ruled in favor of the hospital, and Dallas Court of Appeals Justice David Lewis later affirmed the judgment. On July 1, 2011, the Texas Supreme Court upheld the “paid or incurred” provi- sion in House Bill 4 in Haygood v. Escabedo, which stemmed from a traffic accident. The law allows patients in a medical liability lawsuit to recover only what they actu- ally owe for a medical service, not the amount billed. In August 2010, the Texas Supreme Court issued an opinion in Marks v. St. Luke’s Episcopal Hospital that disqualified the plaintiff, Irving Marks, from damages be- cause he failed to obtain a timely expert 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 liability claim, not a simple negligence claim. The court’s ruling reversed a 2009 decision that medical liability law did not cover Mr. Marks’ claim. Mr. Marks argued he should be allowed to claim unlimited damages. Ultimately, the court determined that plaintiffs can’t package medical liability and simple negligence cases as a dual claim to dodge the expert report requirement or to sidestep the noneconomic damages cap. TAPA filed a brief that aided in a favorable outcome in the case. In March 2010, the Texas Supreme Court ruled that a Texas woman who discov-
ered a sponge was left inside her during a hysterectomy no longer had the right to sue the hospital and doctor 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 of repose (similar to a statute of limitations) for health care liability claims is constitu- tional and doesn’t violate the open courts provision of the Texas Constitution.
September 2013 TEXAS MEDICINE 29
JANELLE SHEPARD
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