"Tort Reform"
BEWARE. THIS COULD HAPPEN IN YOUR STATE:
Mary Alice Robbins writes in the June 16, 2003 edition of "Texas Lawyer" that "... With the stroke of a pen ... (Texas) Gov. Rick Perry signed into law a comprehensive reform bill that could change the civil litigation landscape in Texas. Rep. Joe Nixon, a Houston Republican who authored House Bill 4, says he expects Texas to see less litigation because of the new law...But some don't think H.B. 4 will decrease litigation. Plaintiffs' attorney Mike Slack, a partner in Austin's Slack & Davis, says, 'It [H.B. 4] does nothing to address frivolous lawsuits -- what originally was hailed as the reason for doing all this." What H.B. 4 does do, Slack says, is "take the heart out of significant cases.' ... One area that (the new law) is expected to affect the most is medical malpractice, where non-economic damages will be capped in actions brought after Sept. 1, the effective date of a majority of the bill's provisions...
The new law caps the total liability of all doctors or nurses individually named as defendants in a suit at $250,000. A second $250,000 cap will apply to a defendant hospital, nursing home or other health care institution. A plaintiff potentially could recover $250,000 more if another health care institution is sued, with total recovery limited at $750,000 under the new law...(F)rom a practical standpoint, non-economic damages will be capped at $500,000 in most cases because it's unlikely that a plaintiff can show that an injury was the result of negligence by two institutions.
Tommy Jacks, a plaintiffs' attorney who specializes in med-mal cases, says the caps will force him to be even more cautious than he has been in the past about accepting cases. In addition to looking at whether a plaintiff can expect a recovery based on the facts of a case, he'll be taking a close look at the amount of economic damages that could be recovered, says Jacks, a partner in the Austin office of Mithoff & Jacks.
Figuring into the equation will be the costs of preparing and trying a med-mal case, Jacks says, noting that his firm spends, on average, a little more than $100,000 per case on things such as discovery and expert witnesses and some cases have cost as much as $300,000.
Faced with those kinds of expenses and limits on recovery, some injured parties aren't going to find lawyers to take their cases, plaintiffs' and defense lawyers say.
Spencer G. Markle, a former defense lawyer who now represents plaintiffs in health care liability cases, says the new law discriminates against children, stay-at-home moms, the poor and the elderly, who aren't going to have much, if any, economic losses. If a mother who doesn't work outside the home is the victim of a physician's alleged malpractice, her family can expect to recover only about $250,000, making it hard for an attorney to take the case, says Markle, managing attorney in the Houston office of Morgan & Weisbrod.
'So that family is going to go without a remedy,' Markle says."
