The following from the Texas Tribune, reports that a San Antonio woman is caught between the errors of medical staff and Texas legislation referred to as “tort reform” resulting in a punitive back-fire for seeking compensation for her losses. Read the following article by the Texas Tribune’s Becca Aaronson, dated January 25, 2013.
Despite Counsel, Amputee Hindered by Tort Laws
When Connie Spears arrived at a Christus Santa Rosa hospital emergency room in 2010 with severe leg pain, she told medical staff about her history of blood clots. Doctors sent her home with a far less serious diagnosis.
Days later, swollen and delusional, Spears was taken by ambulance to another hospital where doctors found a severe clot and extensive tissue damage. With her life on the line, they amputated both of her legs above the knee.
Nearly three years later, Spears says she is a victim not only of a medical mistake but also of Texas’ tort reform laws.
The massive tort reform package that Texas lawmakers approved in 2003 capped noneconomic damages a plaintiff can receive for medical malpractice at $250,000 and set a “willful and wanton” negligence standard — interpreted as intentionally harming the patient — for emergency care. It also required plaintiffs to find a practicing or teaching physician in the same specialty as the defendant to serve as an expert witness, and to demonstrate evidence of negligence ahead of a trial. Under the strengthened rules, if plaintiffs fail to produce adequate expert reports within 120 days of filing their cases, they are liable for defendants’ legal fees.
Spears said the laws obstructed her ability to find a malpractice lawyer and forced a judge to order her to pay thousands of dollars to cover some defendants’ legal bills.
Her lawyers plan to challenge the constitutionality of the laws.
“How can that law be?” Spears asked. “Maybe the law was too loose before, but they went way too far the other way.”
Tort reform proponents say that such restrictions are the only way to curb frivolous lawsuits against health care providers, and that they have drawn more medical professionals to a state with exploding population growth.
“Our purpose had never been to have a procedural hurdle,” said Mike Hull, a lawyer for the pro-tort-reform Texas Alliance for Patient Access. “It had been to have the plaintiffs really get the case reviewed.”
For two years, Spears struggled to get legal representation, because several lawyers said they feared her case did not meet Texas’ new negligence standards. Justin Williams, a Corpus Christi lawyer who eventually took the case, said he believed it was so strong it might challenge the state’s tort reform laws. “Her life has basically been ruined by all of this, and there was just no way I could turn her down,” he said.
But the case fell apart under the new expert witness rules. After the first attempt at an expert witness report failed to identify the proper defendants, Williams said, he was unable to find another expert witness in a time frame that would satisfy Texas’ requirements.
Tina York, an attorney for Christus Santa Rosa, said it is unusual for a case to get dismissed because of problems with an expert witness report. The rules are in the statute, she said, to weed out plaintiffs who “can’t legally support their claim” from the beginning.
York said Christus Santa Rosa did not pursue compensation for its legal fees out of sympathy for Spears. But Spears said other defendants in the case had. With her retirement savings tapped and her husband out of work, she is afraid they will lose their home.