In federal court, a class action lawsuit filed in February 2008 in Marshall attacked the constitutionality of Texas’ non- economic damages 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. TAPA coordinated the defense. The lawsuit alleged the noneconomic damage cap violated the right to trial by jury, right to petition, right to due pro- cess, and equal protection under the U.S. Constitution. The plaintiffs asserted Texas’ noneconomic damages cap violates the Fifth Amendment. They alleged the state effectively “com- mandeers” medical liability plaintiffs’ fair and proper com- pensation for noneconomic injuries that exceed the damages limitations. They also contended that capping jury awards dis- proportionately affects the young, old, poor, and unemployed. They maintained that the costs to litigate a medical liability suit are extraordinary and that the limitation on noneconomic damages presented a financial barrier to some claimants who attempt to access the courts. In March 2012, U.S. District Judge Rodney Gilstrap ruled
Texas’ cap on pain and suffering awards in health care lawsuits is constitutional. In doing so, he dismissed claims that a cap on damages unconstitutionally takes private property and that it bars access to the courts. “The court’s decision removes any lingering uncertainty about the constitutionality of the voter-approved cap on non- economic damages,” said Mr. Hull. “A trial lawyer victory would have gutted the benefits of reform and been a big blow to the delivery of health care.” The Dallas Court of Appeals reaffirmed the federal ruling
in the Watson case last year. In Prabhakar v. Fritzgerald, the court concluded the noneconomic damages cap did not violate the Texas Constitution. The appeals court also agreed with the federal district court judge that the noneconomic damages cap did not violate the right to trial by jury, equal protection, or right of access to the courts.
Unresolved issues The courts continue to weigh some legal issues related to medical liability reform. The statute of repose as it applies to minors is at issue in Tenet Hospitals v. Elizabeth Rivera. Ms. Rivera visited the hospital’s emergency department in 1996, complaining of upper respiratory symptoms, cough, and fever. She was nine months pregnant at the time and returned to the hospital the following day and gave birth to her daugh- ter via an emergency cesarean section. Ms. Rivera sued the hospital in 2011 on behalf of her
daughter, alleging the child sustained injuries at birth as a result of alleged negligence.
The hospital moved to dismiss the case, citing Texas’ 10- year statute of repose. The trial court ruled in the hospital’s favor, but the court of appeals reversed that decision, saying the statue of repose violates the open courts provision of the
30 TEXAS MEDICINE September 2013
Texas Constitution as applied to minors injured before their eighth birthday. TAPA asked the Texas Supreme Court to hear the case and filed a brief in support of Tenet Hospitals this year. Two cases in the Corpus Christi and Amarillo courts of ap- peals examined whether Texas’ noneconomic damages cap and wrongful death damages cap work in tandem. TMA and TAPA contend they do, but plaintiff’s attorneys argue only one cap should apply in a wrongful death or survival case. The wrong- ful death cap, indexed for inflation, is approximately $1.8 mil- lion plus medical bills. In THI of Texas at Lubbock I, LLC v. Perea and Rio Grande
Regional Hospital v. Villarreal, the appeals courts sided with TAPA and TMA, determining defendants in “cap within a cap” cases can plead the wrongful death damages cap and the non- economic damages cap. Mr. Hull says he expects the Texas Supreme Court to weigh in on the issue eventually. Should the high court side with plaintiff ’s attorneys, Mr. Hull says, the decision would limit patient access to care in the state. “We had a wrongful death damages cap in place for 25 years
before tort reform, and it didn’t improve access to care. It had no impact on the number of suits filed or the amount of pay- outs in medical liability lawsuits. Access to care would be in jeopardy if the court were to ignore the noneconomic damages cap,” Mr. Hull said. n
Crystal Zuzek is an associate editor of Texas Medicine. You can reach her by telephone at (800) 880-1300, ext. 1385, or (512) 370-1385; by fax at (512) 370-1629; or by email at
crystal.zuzek@texmed.org.
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