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Tort Reform in The ER

Several states, including Texas, have special laws protecting emergency room physicians from medical malpractice litigation.  These protections may include higher burden of proof on the plaintiff or a different standard of care (for example, providing only liability when there is gross negligence). Last week, the Torts Prof Blog outlined an interesting medical malpractice reform proposal being championed by law professor Jeffrey O’Connell.

Under the proposal, emergency room physicians would receive the benefit of a higher burden of proof and lower standard of care, but only after they made a qualifying early offer to the plaintiff.  The doctor would get a set number of days to offer to pay for all economic damages (but not pain and suffering damages) and a reasonable attorneys’ fees (perhaps 10% of the recovery).  If the physician makes the offer and the plaintiff does not accept it, then the physician is entitled to the higher burden of proof.  If the physician makes no offer, then traditional rules apply.

These types of limits are not without precedence.  Under the Texas Deceptive Trade Practices Act, defendants are given a set period of time to make a reasonable offer, and if that offer is rejected then the defendant is entitled to statutory protections.  Similarly, under the  Texas Residential Construction Liability Act, homebuilders and remodelers are afforded statutory protections (such as caps on recovery) if they make a reasonable offer within a set timeframe and that offer is rejected.

If you are at all interested in this concept, we really encourage you to click on the link to the post on the Torts Prof Blog, because the post there has links to other articles with more information.

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