Tort Reform in Texas

You’ve had chronic back pain for years and have finally decided to do something about it. A specialist recommends a routine surgical procedure. It’s common and the risks are considered minimal. During the operation, however, the surgeon makes several mistakes that lead to severe nerve damage. Now, the pain in your back is worse than it’s ever been. You work in a factory but are now in so much pain that you’re unable to perform most of your job. Eventually, you’re let go.

Now, you’re unemployed, unsure if you’ll be able to find another job, and the bills are piling up. What do you do? Who’s to blame? Perhaps most importantly, who’s going to be held responsible? Most would say the doctor. And if not the doctor, maybe the hospital that employs or that credentialed the doctor. But if you live in Texas, holding doctors and hospitals responsible for health care liability claims has become very difficult, even impossible in some cases. And that’s all thanks to tort reform.

For many, the scenario outlined above isn’t some theoretical exercise. It’s the reality they live with.

A tort is an action that causes harm. It can injure a person or damage property. For many, the word is most commonly associated with tort reform and what that’s done to limit the ability of ordinary people to gain access to the courthouse and exercise their constitutional rights afforded under the 7^th Amendment to the Texas and U.S. Constitutions.

Limiting the rights of ordinary citizens to file a lawsuit has been a major policy goal of certain special interest groups since the 1990s. And there were many examples for tort reformers to cite in building a constituency for their cause. Of those, perhaps the most well-known is Liebeck v. McDonald’s Restaurants, aka, the McDonald’s coffee lawsuit.

Stella Liebeck was 79 years old when she spilled a cup of McDonald’s coffee on her lap in the drive-through in February of 1992. For many, the fact that Ms. Liebeck sued McDonald’s over the incident is as much as they know about what happened – and, in the minds of many, an egregious example of a frivolous lawsuit. However, the public perceptions about this case are largely a product of spin created by agenda-driven tort reformers.

There were several facts about the Liebeck case that was left out of the tort reform spin. During the trial, it was revealed that McDonald’s required its franchisees to hold the coffee between 180 and 190 degrees. Coffee heated to 190 degrees will cause a third-degree burn in two to seven seconds—essentially melting human flesh. Ms. Liebeck sustained third-degree burns to her pelvic areas that would put her in the hospital for eight days, and ultimately required skin grafts. The photos of her injuries introduced at trial were graphic. McDonald’s had over 700 reports of people burned by coffee in various degrees of severity but refused to evaluate their policies. Because of the accumulating cost of Ms. Liebeck’s treatment, she left the hospital early, weighing less than a hundred pounds and with more than $10,000 in medical expenses. Her daughter took time off work to care for her mother, which resulted in lost income, and Ms. Liebeck was partially disabled for two years following the entire ordeal.

In the end, none of these details mattered to proponents of tort reform. They were easily able to paint the case against McDonald’s as frivolous, saying that this was just one example of many that were clogging the court system, causing insurance premiums to spike, and driving jobs away from the state.

How Does Tort Reform Affect You?

Because tort reform is so commonly associated with medical malpractice claims, let’s take a look at how it could affect you should you ever suffer a catastrophic injury.

Most efforts at tort reform have focused on three areas: 1) Making it more difficult to file a lawsuit, 2) making it more difficult to try a case before a jury, and 3) limiting the financial damages an individual can recover in a lawsuit.

“I don’t like to use the phrase ‘tort reform.’ That expression implies that it’s doing something good.” – Michael Lyons

In 2003, the Texas Legislature passed House Bill 4 (HB4), which did more than any other piece of legislation in the history of the state to enact those tough restrictions on filing healthcare liability claims. Some of the changes included:

• A $250,000 cap on non-economic damages, which includes damages like pain and suffering, disfigurement, and loss of consortium;
• Imposing a hard cap on death cases for both economic and non-economic damages; and
• Requiring expert reports within 120 days of instituting suit and permitting interlocutory appeals for defendants to challenge their sufficiency.

These changes were and continue to be incredibly significant. Economic damages include medical bills, lost income, and diminished earning capacity. However, non-economic damages include permanent disability, loss of companionship, or loss of enjoyment of one’s life. Many non-economic damages are often classified under “pain and suffering.”

The impact of these changes to the law has had the desired effect on access to the courts by average citizens. First, the time, money, and effort associated with bringing a healthcare liability claim have increased dramatically. Expert reports on the front end of a case are expensive—legal challenges concerning the adequacy of these reports to the Court of Appeals are time-consuming and expensive. Second, because of the resources involved in these types of cases and the caps on damages, lawyers are less inclined to take a case, regardless of merit, if the economic damages don’t justify the time and expense of filing the case. This means people like the elderly, the unemployed, the disabled, and children cannot find an attorney. They simply don’t have the economic damages to incentivize a lawyer to take their case.

“What’s happening now is that people have less access to the courts. You lose the ability to police bad health care professionals. There is an absolute concerted effort to end your right to have a trial by jury.” – Michael Lyons

Is There Hope?

The short answer is maybe.

Christopher Duntsch was a neurosurgeon who began practicing in the Dallas area in 2010. His medical license was revoked in 2013 after two patients died as a result of his negligence, and several others were left seriously injured. Those who worked with Dr. Duntsch referred to him as “Hannibal Lecter,” and, “the worst surgeon I’ve ever seen.” One physician saw that Dr. Duntsch was doing such a poor job during surgery that he tried to physically take his surgical tools away.

In March 2014, several former patients of Duntsch filed suit against Duntsch and various healthcare institutions. Michael Lyons represented one of those victims.

Mr. Lyons and the attorneys representing the other victims raised many important facts:

1. Despite several complaints, hospital administrators allowed Dr. Duntsch to continue practicing medicine and performing surgery.

2. When he was finally suspended, administrators never submitted him to the National Practitioner Data Bank or the Texas Medical Board, which they were required by law to do.

3. After letting Dr. Duntsch know that he was not being investigated, one hospital gave him a letter of recommendation that helped him find another job, where he would kill again.

Michael Lyons’ lawsuit centered around the constitutionality of the standard that Texas was demanding that victims meet, namely, proving that doctors and hospitals intended to inflict harm, as opposed to the earlier standard of acting negligently. For proponents of tort reform, alarms began to sound. The special interests were so worried about the potential repercussions of the suit that then-Attorney General Greg Abbott – himself a tort reform supporter and beneficiary of millions of dollars in donations from the medical industry – personally stepped in and filed a motion defending the law.