Medical Malpractice Caps in Texas
We’ve always disagreed with the reasoning for caps on damages for medical malpractice cases. It’s been our contention that they are unfair, arbitrary, and don’t accomplish much of anything except offer unnecessary protections to insurance companies.
Texas has some particularly harsh restrictions. Awhile back we wrote a piece on how caps on medical malpractice damages aren’t doing anything but pricing victims out of the courtroom. And while that aspect of the law is bad enough, there is also another element of the law down there that is keeping victims of medical malpractice from getting to court at all.
For the sake of argument, let’s say you hire a plumber to fix a leaky pipe. Let’s say that he doesn’t do his job well, and his shoddy work causes other leaks in your house, with the end result being tens of thousands of dollars in water damage. You take this plumber to court. The plumber’s entire argument in his defense is that he “didn’t mean to” cause all of that damage. Based on this argument, the judge rules in his favor.
This sounds like a completely bizarre argument. A drunk driver certainly “didn’t mean to” cause an accident with fatalities, but he did anyway. A teenager texting while driving “didn’t mean to” hit a pedestrian in a crosswalk, but he did anyway. There is no conceivable way that “I didn’t mean to” should be a valid excuse in court of law.
But it absolutely is in Texas. If you get treated by an emergency room doctor down there, and he makes a critical mistake, essentially all he has to do is say “I didn’t mean to,” and that keeps the victim of that mistake from collecting any damages, regardless of how bad the damage is.
The fine print in the law that capped non-economic damages at $250,000 had special protections for emergency room doctors, each of whom are now protected from penalties in court unless it can be proven that their negligence was “willful and wanton.” That phrase essentially means that whatever you did, you did so knowing that it would harm other people. And you are more likely to find Bigfoot riding a unicorn than any doctor anywhere who will admit to that.
Here is a real life example as to how this protection has further victimized people who have been injured by doctor’s mistakes. A woman with a history of blood clotting went to the emergency room of a San Antonio hospital because of leg pain. The ER doctor there sent her home with a diagnosis of “bilateral leg pain,” and advised her to follow up with her primary care physician. Three days later, she was in a different hospital, this time with tissue death in her legs and kidney failure. A filter that she had had placed in one of the veins in her heart was clogged up, which led to incredibly bad clotting. Doctors had to amputate both of her legs.
Ultimately, the doctor who initially saw her and told her to follow up with her primary care physician must bear some responsibility. He didn’t ask the right questions, or he didn’t take the time to look into her case as thoroughly as he should have, and as a result this woman is a double amputee. But since he didn’t do any of these things on purpose, he gets a pass.
When you read about this case and others like it in Texas, you almost want to scream to the heavens. “Of COURSE he didn’t do it on purpose! He’s not a monster! He’s simplynegligent!” Medical malpractice suits aren’t filed because lawyers hate doctors. Medical malpractice suits are filed because sometimes doctors make easily preventable mistakes, and these mistakes have serious consequences. No lawyer would make the argument that a doctor gave the wrong diagnosis just to be mean. The argument is not “Did he mean to do it?” The argument is “Could have this been prevented if reasonable standards and practices had been used?” But the fine print in the laws of Texas essentially shifts all of the arguments into unwinnable territory for anyone who walks into an emergency room and is the victim of a doctor’s mistake.
These laws were not put into place to make things better for doctors or patients. They were put into place so malpractice insurance companies could continue to have profitable years. Call us crazy, but we think the financial health of an insurer should be the last thing on the list of priorities when you walk into a hospital.
Greenberg and Bederman is a medical malpractice law firm located in Silver Spring, Maryland. We are currently offering legal assistance to people in Maryland, Virginia and Washington, D.C. who have been injured due to the negligence or incompetence of doctors or surgeons. If you have been injured due to the actions of a doctor, contact a medical malpractice attorney for a free malpractice legal consultation today.
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