New Texas Medical Malpractice Laws
For the sake of argument, let’s say that you are employed in a place where there are absolutely no consequences for doing a bad job. Let’s say that it doesn’t matter how bad you screw up. It doesn’t matter if you get everything wrong; it doesn’t matter if you deliver terrible customer service and it doesn’t matter if you show up three hours late every day or don’t show up at all. It doesn’t matter if you are incompetent. It doesn’t matter if you don’t know what you are doing. Nothing that you do or don’t do will cause you to get fired. You won’t even get reprimanded. Would those parameters affect how you did your job? Many of you would probably say that you would do your best, just out of principle. But could you say the same for all of your co-workers?
If this hypothetical place of employment was a restaurant, or an accounting firm, or even a law firm, the performance issue would most assuredly be solved by what are called “market forces.” In other words, if your business delivers a bad product, no matter what it is, then people will simply stop patronizing your business and take their dollars elsewhere. But what if your business happens to be a hospital? What if the line of business is helping the sick, injured or wounded? And what if all the businesses in the area were run under the same “no consequences” guidelines? What if there was no “elsewhere” to take your dollars to?
Believe it or not, this is what’s happening in Texas right now.
Depending on your perspective, Texas is either a “great” or “terrifying” place in which to receive medical care. If you happen to be a doctor or insurance company, it’s great. If you happen to be a patient, it most certainly is not the best. Under the guise of “tort reform,” people in Texas who seek emergency room treatment have essentially no legal recourse if the doctor treating them makes an error. The fine print of the 2003 tort reform law in Texas states that unless an emergency room physician acted with “willful and wanton negligence,” no victim of emergency room malpractice is eligible for civil damages at all. This means that it has to be proven that an emergency room physician meant to make a mistake, which is about the biggest legal oxymoron we have ever seen. On top of that, the main thrust of the 2003 tort reform capped non-economic damages at $250,000 for medical liability, which might seem like a lot, but is actually about what it costs to get a medical malpractice case through the court system in the event that a malpractice insurance company wants to settle. (They very rarely do.) So what you have in Texas is a system where people who have been clearly injured due to medical negligence are unable to bring their cases to court, either because they were injured in the emergency room and are therefore ineligible for civil damages, or because the restrictions on compensation make it financially impossible for plaintiff’s attorneys to take the case.
This has made life great for insurance companies in Texas. It has also made life great for doctors, who have had their chances of being brought to court dramatically reduced, even if they have committed medical malpractice. By limiting the options of what victims of medical malpractice can do after they have been hurt, doctors are free to practice their profession without the fear of being sued, and malpractice insurance companies are free to insure doctors without the fear of having to pay malpractice claims.
So now that Texas has essentially no consequences for medical professionals who make mistakes, guess what happens? The standard of care drops, for starters. And doctors, nurses and administrators start taking advantage of the legal protections in new and clever ways.
From the Associated Press:
The federal government said after an inspection at Parkland Memorial Hospital found conditions that were a "serious threat" to patient safety, the public hospital will not be able to participate in the Medicare program without coming up with correction plans.
Among the reasons for this potential removal of Medicare money are violations of infection prevention protocol, as well as a practice of moving the majority of patients to the emergency room to be screened, regardless of whether their condition required urgent care or not. The reason for that is probably to cover all the bases in the event that someone screws up. Remember, emergency room equals no liability. So if you check into a hospital in Texas with a manageable and minor ailment, don’t be surprised if they make you go down to the emergency room first.
So what do the patients in Texas get out of all of these protections for doctors and insurance companies? Not much. Rather than focusing on actual instances of malpractice, Texas decided to focus on restricting or removing the legal options of people after they have been hurt, which will do nothing to lower the rate of medical malpractice, wrong diagnoses, surgical errors, prescription errors or hospital infections. If anything, it would allow doctors, surgeons and nurses to practice with less care and concern, mainly because the consequences for negligent or sloppy medical care have been removed.
The next study that needs to be performed is to learn whether the cap on medical damages has resulted in lower medical malpractice premiums for Texas doctors and healthcare providers.
This is something to keep in mind in the event that any legislators in Virginia or Maryland point to Texas as an example of the “good” that tort reform can do.
Greenberg and Bederman is a medical malpractice injury firm located in the Washington, D.C. area. We are currently offering legal assistance to those who have been injured due to surgical errors, wrong diagnoses, hospital infections or other preventable forms of medical malpractice. If you or a loved one in Maryland, Virginia or D.C. has been injured due to the negligence of a doctor or medical professional, contact Greenberg & Bederman for a free consultation today.
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