Despite Counsel, Victim Is Hindered by Tort Laws

SAN ANTONIO — When Connie Spears arrived at a Christus Santa Rosa hospital emergency room in 2010 with severe leg pain, she told medical staff members about her history of blood clots. Doctors sent her home with a far less serious diagnosis.

Ms. Spears in a pre-surgery photograph. She has run into problems with the state’s expert-witness rule and its time frame.

Days later, swollen and delusional, Ms. 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, Ms. Spears contends that she is a victim not only of a medical mistake but also of Texas’ tort reform laws.

The huge tort reform package that Texas lawmakers approved in 2003 capped noneconomic damages that a plaintiff could 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 before 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.

Ms. 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 file a motion that challenges the laws’ constitutionality.

“How can that law be?” Ms. 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, Ms. Spears struggled to obtain 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, “Her life has basically been ruined by all of this, and there was just no way I could turn her down.”

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, Mr. Williams said, he was unable to find another expert witness in a time frame that would satisfy Texas’ requirements.

Tina York, a lawyer for Christus Santa Rosa, said it was unusual for a case to be 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. (Christus Health is a corporate sponsor of The Texas Tribune.)

Ms. York said Christus Santa Rosa did not pursue compensation for its legal fees out of sympathy for Ms. Spears. But Ms. 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.

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Source: The New York Times (Aaronson, 1/24)

Texas takes tort reform too far

By Patricia Kilday Hart

Of all William Shakespeare's enduring lines, perhaps the one that has resonated most through the generations comes from "Henry VI": "The first thing we do, let's kill all the lawyers." Taken out of context, it's a great lawyer joke, as if the Bard knew modern society would blame lawyers for everything from inscrutable contracts to ridiculous consumer warning labels. (My favorite: an admonition against running at night on my son's glow-in-the-dark Frisbee.) A lawyer-free world conjures a society free of hair-splitting and hucksterism - in other words, Utopia.

Or does it? In Texas, we're learning what happens when you can't turn to a lawyer for help. Two strong forces are making it nearly impossible to seek redress for injury in state courts: sweeping tort reform laws and a Texas Supreme Court with an activist conservative bent. The results aren't pretty.

Consider the case of Michelle Gaines, who in June 2006 was a popular Palestine teenager with a bright future when an 18-wheeler hauling an oil rig smashed into her car, causing severe brain damage. A Tyler jury ordered the driver who caused the wreck and a businessman involved with the oil rig to pay her $8 million - money Gaines' family desperately needs to provide for her rehabilitation and care for the remainder of her life.

A Tyler appeals court overturned the jury's decision, claiming there was no evidence to support the verdict, and the Texas Supreme Court recently declined to consider Gaines' appeal.

And yet trial testimony showed that the men had destroyed crucial evidence demonstrating joint ownership of the rig and that the driver had been bribed to alter his story. Gaines' attorneys say the court's decision violates precedent that evidence should be construed in a light favorable to a jury's verdict.

Right to jury trial

"It's an outrageous decision," said University of Texas law professor Steve Goode, a member of Gaines' legal team. (The Gaineses' attorneys have asked the court to reconsider.) "It's astounding that they refused to consider this as evidence against this defendant."

But it's not just attorneys involved in specific cases who believe the court is engaging in wrong-headed activism. Tea party activists are beginning to question whether Texas Republicans have dismantled the Seventh Amendment - the right to a jury trial - in their slavish devotion to limiting lawsuits.

Former Harris County District Judge John Devine, who recently defeated Texas Supreme Court Justice David Medina with tea party support, has criticized the court's willingness to overturn jury verdicts. And two independent studies suggest that the Texas Supreme Court - once criticized as biased for trial attorneys - has swung to the opposite philosophical pole.

UT law professor David Anderson, in a 2007 study of 69 opinions written by the court in 2004 and 2005, found that defendants - the parties accused of causing injuries - won 87 percent of the time.

Contempt for juries

Is that different from other states? Anderson examined all state appellate cases involving Wal-Mart between 1998 and 2005. The Texas Supreme Court ruled in favor of the discount chain in all 12 cases it received. There were 81 other cases in other states, but Wal-Mart prevailed in only 56 percent of them.

Texas Watch, reviewing cases involving consumer complaints from 2004 to 2010, found the court overturned jury verdicts an amazing 74 percent of the time. Wrote the study's authors: "The Texas Supreme Court is expected to respect reasonable jury verdicts. … In the final analysis, the court fails this test, impermissibly usurping the authority of juries and demonstrating contempt for their verdicts."

Tea Party Nation founder Judson Phillips uses Texas as a cautionary tale against Republican presidential nominee Mitt Romney's plan for federal tort reform. "Texans are losing their Seventh Amendment rights because they can't get lawyers to take cases anymore," Phillips wrote in a recent blog post.

He cited the case of Charles Caldwell, who died in October 2008 in a Dallas-area nursing home when attendants tried to force medications down his throat, but instead filled his lungs. When his son tried to sue, he could not find a willing lawyer.

Why? Texas tort reform legislation put such low caps on damages that no lawyer could afford to take the case. Yet, earlier this year, the Texas Board of Nursing issued a reprimand against the nurse for committing major medical errors.

Houston attorney Mark McCaig, has been warring with Texans for Lawsuit Reform, which lavishes campaign contributions on friendly politicians, by urging the Republican Party to rethink its stance. He's often dismissed as a phony conservative since he works for trial lawyer Steve Mostyn, a prominent Democratic campaign contributor.

Shakespeare knew it

But McCaig believes the rise of the tea party will challenge tort reform. "What you have seen happen is (that) it has taken away the rights of people with legitimate claims. It goes against the notion of personal responsibility." In our society, that means access to the courts, and to lawyers.

But Shakespeare knew that. The speaker of the famous line from "Henry VI" wanted to replace the rule of law with the personal whims of despots. In a society bereft of legal boundaries, there's no need for lawyers.

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Source: Houston Chronicle (Hart, 8/9)

Paper finds Texas tort reform didn't draw more doctors to state

Black/Hyman/Silver have a new draft paper, "Does Tort Reform Affect Physician Supply? Evidence from Texas," (via Robinette) that substantially undermines the empirical case for the conventional wisdom that Texas's 2003 reforms against medical malpractice lawsuits attracted more doctors to Texas. The result is highly counterintuitive: after all, even the authors acknowledge that the reforms dramatically decreased malpractice expenses for doctors. Are we to conclude that doctors do not respond to economic incentives?
Alas, the authors do not suggest any explanation for the phenomenon they describe. Possibilities:

• The supply of doctors is inelastic relative to after-expense income. This is a testable hypothesis, and would have dramatic implications for "bending the cost curve" of health-care expenditures if true.
• Employers of doctors offset the decrease in medical-malpractice expenditures by decreasing wages paid to doctors. This seems somewhat implausible, as many doctors are independent, and the ones that aren't probably aren't paying for their own malpractice insurance. But it is also a testable hypothesis. Too, if the health-care market in Texas responded to such a wage decrease by reducing costs to patients (or, at least, reducing costs to patients relative to the nationwide trend of rising costs to patients), that is also worth studying, and would be a benefit that may refute the overstated conclusion of the authors that "tort reform is a small idea, when it comes to the larger and linked questions of health care access and affordability."
• The quantity of doctors did not increase, but the doctors responded to the incentives by changing the mix and quality of services provided in any given year: more OB/GYNs willing to deliver babies rather than restricting themselves to less risky work; more doctors willing to work in emergency rooms; doctors spending more time seeing patients and less time in medical-malpractice-related activities like defending themselves in lawsuits, cover-your-ass documentation, and (for better or worse) defensive medicine. If the average practicing doctor is spending more hours with patients post-tort-reform than pre-tort-reform, doctor supply is increasing, even if the raw numbers aren't. I am not aware of any evidence for this, but economic theory would predict this result. It's not clear whether the data exists to test this hypothesis, but as in the parable of the drunk looking for his lost keys under the streetlamp, one should avoid drawing conclusions that contradict economic theory just because it is too difficult to test an alternative hypothesis consistent with economic theory. Too, if defensive medicine practices changed, as one predicts they would, have health outcomes changed for better or worse? (Professor Silver has argued elsewhere his concern that Texas doctors would take less care post-reform.) Again, this is difficult to test, especially since the adverse consequences of many defensive-medicine decisions, such as excessive CAT scans, won't be known until the additional cancers show up decades later. But it is both a potential benefit and a potential cost of tort reform, as we don't know to what extent doctors are properly weighing benefits and costs (including opportunity costs of more intensive treatment of a particular patient) at the margin. Kessler's study, backed to a lesser extent by the CBO, certainly suggests defensive medicine is wasted money at the margin in the state of the world without damages caps, but defensive medicine is surely different today than in the 1980s.
• For many doctors with low-risk practices, malpractice liability is not a large factor in their practice decision. But the malpractice liability crisis most heavily hit high-risk practices, like neurosurgery or OB/GYN or emergency-room care. Did Texas tort reform materially affect the supply of doctors in high-risk specialties, while the effect on low-risk specialties was overwhelmed by noise? This should be a testable hypothesis, but the data is poor because of a change in the way statistics were collected. The authors try to get around this by comparing 1997-2000 growth to 2008-2010 growth, but there's not necessarily a reason that one would predict a post-tort reform world to have a different post-equilibrium effect than a pre-tort reform world. One cannot rule out the hypothesis that doctors overreacted to the new incentive when tort reform was first imposed and that depressed new demand in later years. Of course, one cannot rule out the null hypothesis that a dramatic decrease in malpractice-insurance rates caused by tort reform did not increase the supply of high-risk doctors, though, again, one wishes for an alternative explanation for why doctors are not responding to economic incentives. (Note, too, that the authors' decision of excluding 2001-07 from the data has dramatic effects on the data. It's unclear to me why a reporting change in 2001 that would artificially increase the 2001-02 numbers relative to the 1999-2000 numbers should have an effect on the 2003-07 numbers, especially given the 2000-2003 declines that are being excluded.)

Can anyone think of other alternative hypotheses in the comments?
I remain skeptical that a wealth transfer from lawyers to doctors and patients didn't have positive externalities, but I, for one, am going to stop claiming that Texas tort reform increased doctor supply without better data demonstrating that. More study is needed to explain Black/Hyman/Silver's counterintuitive result, and partisans on both sides need to be more conservative with their policy claims. Earlier.


[source: Point-of-Law, Frank]

City won't pay when poles crash on property

AUSTIN - Joyce Thompson had just been diagnosed with breast cancer and was receiving radiation treatments when her only method of transportation was destroyed.

A city light pole fell on her car while it was parked in her driveway.

"I had to get one of my kids to take me and wait for me, pick me up, take me back home, take me back for radiation," said Thompson, recalling her ordeal that was three years in the making. "And it's just been really hard."

Thompson and her family thought the city would take responsibility for the falling pole, which photographs show was clearly rotted at the core.

"We've been at this address 20-plus years," Thomson said. "And the whole time that we have been there, that pole has never been changed."

Her son Bryan added, "We thought they were going to take a good position and say to themselves, 'OK, let's do something right.' But nothing. Nothing but a 'Go away. Go buy another car. You're a little person,' and 'Get over it.'"

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By the numbers

• 200,000 light poles are in place citywide
• 1,700 complaints about street lights have been logged with the city of Austin since 2009
• 144 of the complaints were for poles that had already fallen
• 2,500 light poles were replaced around the city

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When the city officials made clear they would not take responsibility for the damage to Thompson's Buick Roadmaster, she and her family sought out attorneys Ifeoma Ibekwe and Holly Claghorn.

"This case, it's just a matter of right vs. wrong," said Ibekwe. "It pulls on your heartstrings, and it's just one we couldn't walk away from."

Ibekwe and Claghorn took the case to court, where the justice of the peace ruled that the city was not liable for the damage. The reason is because lawmakers, as part of the Texas Tort Claims Act, have said that cities are not liable for damage caused while performing certain government functions, such as providing lighting for safety.

The pole that fell on the Thompson's car was a light pole and had no utility lines attached to it.

Immune from liability

"They're saying, 'We're not going to touch that. That's not our area. We're immune from liability,'" said Ibekwe. "However, if it was a utility pole and not just a light pole, they would have paid for that.

"And we can't find a way to distinguish why it's OK for a utility poll to fall down and for them to receive compensation," she added. "And yet if it's a light pole -- same type of pole maintained by the city except it just provides lighting -- they call it safety and security."

Meghan Riley, an attorney for the city of Austin, said the city is only following the law and trying to protect taxpayers from frivolous lawsuits.

"Its a sympathetic situation, but it's something the Legislature has made a determination on," Riley said. "And so it's something that the city doesn't have a choice to determine.

"I'm really sorry for her situation," she added. "It's certainly unfortunate that it happened."

But the Thompsons are not the only victims of this kind of situation.

KXAN News uncovered seven cases since January 2009 where light poles have fallen and damaged someone's property. In each case, the city has denied responsibility.

In a case from December 2010, a couple was driving near the Arboreteum in North Austin when a metal light pole fell on their car. Photos of that pole show rust at the base.

The couple was told the city was not responsible.

What about inspections?

"The city has an inspection program for the light poles that run electric wires but not for the ones that have lighting on them. But if you're a citizen walking around the street and you see a light pole, that's a distinction that doesn't matter to you and if it falls on your car it doesn't matter what kind of wires were connected to it," said Claghorn.

The Thompson family and their attorneys want the city to do a better job of inspecting the poles, but that presents a challenge for the city.

"It's similar to the city sidewalk.  We have, however, many miles of sidewalks, and we can't possibly inspect them in an organized way to take care of all that, so we rely on the public to let us know when they see something," said Riley.

That's small comfort to Joyce Thompson and others who found themselves having to pay for damage that was caused by city equipment. Thompson was finally able to replace her car about a month ago, nearly three years after the city's pole fell on it.

"I just really want them to do their job," she said, "not, not just -- you know --  not do anything about it."

What can you do?

If you see a dangerous light poll, call 311, and advise the call-taker of the pole's location and condition

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source:  KXAN (Wolfson, 5/1)