Imaginary Hobgoblins in Texas Medical Malpractice Law
Presidential candidate Mitt Romney recently used the phrase “self-deportation” as a solution for dealing with illegal immigration here in the United States. This became fodder for a lot of comedians and late-night talk show hosts. Everyone seemed to believe that Governor Romney was suggesting that all the illegal immigrants should simply pack up and leave of their own accord, which we all know is unlikely to happen.
What many people didn’t realize was that Governor Romney was referring to an actual process that is taking place in quite a few states. The idea behind “self-deportation” is that if you make it incredibly difficult to simply be an illegal alien, then illegal aliens will leave. If you need to show proof of either citizenship or legal immigration status for every transaction, be it wiring money, cashing a check, filling up gas, going to school, buying groceries, or any of the mundane yet crucial acts that everyone needs to do to survive, and you can’t provide that proof of citizenship, then you will leave.
There is a weekly radio show called “This American Life” that is carried on most NPR stations, and last week they ran an interesting piece onillegal immigration. They looked at a new set of laws that were in place in Alabama and how the rules not only affected illegal immigrants, but legal ones as well. We heard a lot about immigrants who were perfectly legal, yet faced hostility and ostracism in communities that were welcoming before these anti-immigration initiatives took place.
It made for dramatic and thought provoking listening. The one part of this story that really made us take notice was the fact that Alabama did not even have a very big illegal immigration problem in the first place. There was no pressing need for immigration restrictions, because there simply weren’t that many illegal immigrants in Alabama.
Despite this lack of a problem, the Alabama state government decided that they needed a draconian solution, so this proof of legal status requirements was put into place. They are working. Immigrants are leaving Alabama. Some go back to Mexico, while others go to states with a less restrictive atmosphere.
We found this to be an interesting development, mainly because a state that didn’t have a serious problem with immigration came down the hardest on its immigrants. Politicians magnified the scope of the problem and then “came to the rescue” with solutions that were much more drastic than they needed to be.
This sort of thing happens more often than you would think. The great American writer H.L. Mencken summed it up perfectly:
“The whole aim of practical politics is to keep the populace alarmed (and hence clamorous to be led to safety) by menacing it with an endless series of hobgoblins, all of them imaginary.”
Business groups and insurance companies in Texas have done the exact same thing, except they have done it with the Seventh Amendment rights of their citizens rather than illegal immigrants. Their government made the claim that so-called “frivolous lawsuits” were ruining the economy of the state and scaring businesses and doctors away, even though none of those things were happening. Medical malpractice insurance companies were blaming a sudden severe spike in premium costs on an avalanche of frivolous lawsuits, even though the numbers of medical malpractice lawsuits had remained constant for a decade.
With a newly invented “crisis,” Texas set about instilling a draconian set of “solutions” that weren’t needed, and effectively shut down the ability of most Texans to even get to the courtroom. The first “fix” was capping the amount of non-economic damages that victims of medical malpractice could receive. The number ended up being $250,000. That might sound like a lot, but non-economic damages are where plaintiff’s attorneys (the only attorneys that many injury victims can afford to take their cases) earn their fees, which are based on a contingency. The plaintiff’s attorney also fronts the expenses of running the trial, which can be quite costly. There are expert witnesses to find and depositions to run, not to mention all the research there is to be done. With the ceiling at $250,000, many personal injury attorneys would lose money trying a medical malpractice case. A cap on $250,000 has essentially priced poor people out of the courtroom.
The second “fix” is also for medical malpractice cases, and it is meant to “protect” emergency room workers. It’s a fairly simple rule. If you get injured by an emergency room physician, you can’t sue him for any monetary damages. It doesn’t matter if he makes a patently obvious error. Because he works in an emergency room, he has immunity. The only way he can be found guilty in court is if he admits that he meant to do so, and what doctor in his right mind would admit that?
An invented problem, which led to unneeded “solutions,” and as a result it is practically impossible to file a lawsuit in Texas. Imaginary hobgoblins, indeed.
Many pundits give Texas the benefit of the doubt (when they bother to speak about it at all,) and claim that this state of affairs was an unintended consequence of a well meaning law. But we take a dimmer view. We believe those legislators knew exactly what they were doing. Making money is nice, but making lots of money is better. And if a few thousand lives get ruined in the process, that’s just too bad, isn’t it?
Greenberg and Bederman is a medical malpractice law firm located in the Washington, D.C. area. We are currently offering legal assistance to those who have been injured due to the actions of doctors, surgeons or other medical professionals. If you or a loved one in Virginia, Maryland or Washington, D.C. has been hurt due to a case of medical malpractice, contact Greenberg & Bederman today for afree medical malpractice legal consultation.
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