In 2003, the Texas legislature adopted sweeping medical malpractice reforms, including putting a cap on the amount of non-economic damages that plaintiffs could recover. Up unitl now, we’ve had a lot of anecdotal evidence that the caps were unfair, but earlier this week, four law professors (including three from the University of Texas school of law) released a study confirming the anecdotal stories.
The professors looked at how the cap was applied to jury verdicts across the state since the passage of HB4, the medical malpractice statute. I think their statistics were stunning. In cases won by the plaintiff, the damages were reduced by the caps in 47% of the cases. Jury verdicts are supposed to be protected. The jurors are the ones that see the evidence, see the victims and get a first hand look at how the malpractice has impacted the victims. The jurors are in the best position to truly determine the plaintiff’s loss. And, unfortunately, in almost half the cases where the jury finds that the doctor was negligent, the caps mean that the plaintiff isn’t being fully compensated, in the eyes of the jury, for his or her loss.
And just as trial lawyers predicted, the caps are having a disproportionate effect on the unemployed, the deceased and the elderly because these groups don’t have lost wages (economic damages) to prop up their claims. And those are just the cases that are brought and tried. The biggest discriminatory effect might come in case selection. In cases involving the elderly, children and the unemployed, the damages are almost always limited to non-economic damages. It is almost impossible to make these cases work economically. In such a situation, the attorneys are likely being asked to spend $80,000 – $100,000 of their own money (a fairly conservative amount for what it costs to work up a good medical malpractice case) when the best that they can hope for is recovering $100,000 in fees (40% of the $250,000 cap). Add in the difficult nature of medical malpractice claims, and good plaintiff’s lawyers have to turn down almost all medical malpractice cases brought by the unemployed or the elderly.
What does this all mean? During the HB4/Prop 12 debate, one of the constant themes that we heard from Joe Nixon and the tort reformers was the need to eliminate frivolous lawsuits. But this data says the opposite is happening. The tort reform measures don’t stop frivolous claims; they simply reduce the amount of meritorious claims.
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