Texas Reforms Undermine Patient’s Rights – Weaken Medical Malpractice Remedies

In looking at ways to contain the ever-rising cost of health care in America tort reform – a fancy way of saying ‘making it harder to sue bad doctors’ – is often cited as a quick fix. A recent article in the New York Times, however, underlines in the most harrowing ways possible the consequences that can arise when a legislature lets the urge to cut doctors costs outrun its concern for patients rights.

As the article details, in 2003 Texas changed its tort laws with the goal of making it “more difficult for patients to win damages in any health care setting, but especially emergency rooms.” The state’s big idea was to cap damage awards with the goal of bringing down doctors’ insurance rates: noneconomic damages in Texas are now limited to $250,000 from each health care provider and $750,000 overall.

The legislature also, however, sought to provide extra protection to emergency room doctors, on the grounds that they must often make split-second life-or-death decisions and, thus, should be insulated from frivolous lawsuits. It is a laudable goal in theory: reform that makes life easier for the hardest-pressed doctors and, in the process, lowers their insurance rates. To achieve this, however, the legislature used sweeping language, declaring that emergency room doctors cannot be sued at all unless a victim can show the doctor acted with “willful and wanton negligence”. In practice, as the Times notes, that standard has proven virtually impossible to meet.

Doctors’ insurance rates have, indeed, dropped – but as the newspaper details, many victims of what would be deemed gross negligence virtually anywhere else today find themselves with little or no legal recourse in the state of Texas. In effect, Texas law now protects incompetent doctors from the consequences of their actions unless the doctor was actively trying to harm a patient – and the patient can prove it.

Mercifully, this is not the way we do things here in Oregon. Under our laws, victims of medical malpractice have a full range of options to consider, and, if their case is sufficiently strong, can fight for a truly just settlement with the help of a Portland medical malpractice attorney. We can all agree that America’s medical system has its problems – but denying victims what they are rightfully due is not the way to fix them.

New York Times: State’s tort reform makes lawyers wary of taking on patients