In 2003, Texas tort reform advocates and activists mutilated Texas medical malpractice laws to the point that innocent victims of emergency room negligence cannot hold the hospital, doctors or staff responsible. They were also successful in getting an amendment to the Texas Constitution passed that limits non-economic damages assessed against a provider of medical or health care to $250,000.00 – no matter how severe the medical negligence or resulting injuries – and, after January 1, 2005, the ability to pass laws that will limit awards in all other types of cases.

They did this by scaring Texans with exaggerated claims of doctors leaving the state because of lawsuit abuse and high medical malpractice insurance rates. This politics of fear moved Texans to side with the tort reformers. The tort reformers sole purpose in medical malpractice reform was to hit trial lawyers in the pocket book. They used the medical profession as their poster child, and it worked.

Nine years later there is significant decrease in the number of medical malpractice cases being filed because of these damages caps, but with little or no significant decrease in medical malpractice insurance rates. The sole winner is the insurance industry. The hands-down losers are the innocent victims of medical malpractice.

The tort reformer supported, anti-consumer Texas Supreme Court has taken this entire travesty one step further, and now, even the medical profession is victimized. The Texas Supreme Court recently expanded the reach of and scope of the Texas Medical liability Act to include injuries in the medical setting not related in any way to the medical care being provided. It has now held that when an injured employee of a medical provider files suit against his or her employer, that employee must file an expert report supporting their case with 120 days of filing the lawsuit. The Supreme Court included these kinds of claims in the Act’s definition of health care as an act or treatment performed or furnished, or that should have been performed or furnished, by any health care provider for, to, or on behalf of a patient during the patient’s medical care, treatment or confinement TEX. CIV. PRAC. & REM. CODE 74.001(a)(10). This expert report requirement increases the cost and difficulty of what should be no more than case where you hold the occupier or owner of the premises responsible for the dangerous condition that caused the injuries. In the Act, “expert report” means a written report by an expert that provides a fair summary of the expert’s opinions as of the date of the report regarding applicable standards of care, the manner in which the care rendered by the physician or health care provider failed to meet the standards, and the causal relationship between that failure and the injury, harm, or damages claimed. This expert report provision is onerous and is used in medical malpractice cases to deny compensation to innocent victims of medical negligence.

Further, that act or treatment is defined in the Act under the definition of a health care liability claim to mean a cause of action against a health care provider or physician for treatment, lack of treatment, or other claimed departure from accepted standards of medical care, or health care, or safety or professional or administrative services directly related to health care, which proximately results in injury to or death of a claimant, whether the claimant’s claim or cause of action sounds in tort or contract. TEX. CIV. PRAC. & REM.CODE 74.001(a)(13).

The Texas Supreme Court’s first perverted interpretation and application of the Act came when it ruled that a injuries sustained by a patient as a result of a broken hospital bed came within the meaning of the Act. That interpretation benefited the medical providers because it kept them from getting sued for patient and visitor injuries occurring on their premises, and they did not mind that at all. Its second perverted interpretation and application of the Act is directed at employees and others injured in the health care setting but who are not receiving any medical care.

The loyal poster child that got tort reformers what they wanted are their newest innocent victims, and they have been put on a gurney and rolled out of the facility with the innocent victims of medical malpractice. Those in the medical provider field who believed there were too many frivolous malpractice lawsuits ironically now have to file a medical malpractice lawsuit to be compensated for the injuries they received providing medical care.

Why did the Supreme Court do this? Because the tort reformers and the Texas Supreme Court believe all personal injury lawsuits are frivolous and litigants are not entitled to just compensation. The Texas Supreme Court has closed Texas’ courthouse doors to all innocent victims in the medical care setting.


Taking away right to sue when wrong has been done isn’t helping Texans

Op-Ed in the American Statesman
by Alex Winslow, Local Contributor and Executive Director of Texas Watch Texaswatch.org

While the state is crumbling under a real health care crisis, Gov. Rick Perry and his friends in the special interest lobby continue defending a lobbyist-driven health care battle from a decade ago that has failed Texas patients.

They want you to believe that taking away the legal rights of patients is good medicine. Try as they might, though, there is no disputing the facts:

Texas ranks dead last in the quality of health care, our health care costs are soaring at a rate faster than the national average, we rank near the bottom in the number of doctors who actually see patients, and we have the highest rate of people without health insurance. These are facts, not spin-doctored anecdotes like the ones the governor and his cronies in the insurance lobby like to use.

Back in 2003, politicians and lobbyists made a pack of promises about what they alleged would happen if voters approved a ballot proposition that severely and arbitrarily restricted the legal rights of Texas patients.
Among them was that what you spend on health care would go down. Turns out, they lied. Now, they are trying to cover their tracks.

Insurance industry lobbyist John Opelt recently said, “We did not and have not led voters astray.”

Really? Numerous political mailers paid for by Opelt’s group during the 2003 campaign tell a different story.

One mailer said the ballot initiative would “reduce … health costs.” Another said it would make “health care more affordable and available for all Texans.”

All of this comes from a playbook they ve been using for decades: Claim there is a crisis of some sort, say that restricting individual legal rights is the solution, promise Texas families and small business owners the moon, and attack anyone who disagrees.

Texans are smart, though. We know when someone is pulling a fast one.

How can it be that eliminating accountability for polluters, careless nursing homes, insurance companies, Wall Street bankers and big drug makers is good for the public? The answer is that it can t be.

Numerous academic studies by independent organizations and legal scholars prove that it is a fallacy to claim that taking away the legal rights of individuals will benefit the public at-large.

Whether we are talking about patients, policyholders or small business owners, we have seen time and again that when lobbyists succeed in stripping or curtailing individual legal rights, the public is harmed.

The only ones who benefit are a narrow group of special interests.

Yet every time one of these proposals comes to the Texas Legislature, the lobbyists claim this will be good for all Texas citizens.

Texans know better. We believe that accountability is good and necessary. This is a basic value we teach our children.

When a person or corporation causes needless harm, they should be held responsible for it. Plain and simple.

When wrongdoers succeed in getting away with the harm they cause, the rest of us are left to pick up the pieces and pay the tab.

Texas faces a host of real-world problems, including a broken health care system. It has been a decade since the governor signed away the rights of Texas patients under the false promise of better, cheaper, and more accessible care.

Sadly, rather than admitting he was wrong, Perry has chosen to be campaigner-in-chief and head lobbyist for the special interests.

Texans deserve real solutions from leaders who understand the importance of personal and corporate responsibility, and who want to find answers to our state’s problems that improve the lives of everyday Texans not just a narrow group of powerful interests.