Law Feature - March 2008
By Crystal Conde
It's been almost five years since state legislators and voters profoundly changed the practice of medicine in Texas. In spring 2003, an intense lobbying and public education effort by the Texas Medical Association and its allies paid off, as the Texas Legislature passed a landmark medical liability reform bill. That fall, voters approved Proposition 12, a constitutional amendment that affirmed the legislature's authority to set noneconomic damages caps in health care lawsuits and other civil actions and that was designed to protect the caps against a state constitutional challenge.
Since then, the turnaround has been remarkable. Instead of physicians fleeing the state, they are now coming to Texas in record numbers. Physicians' skyrocketing insurance premiums plummeted, and access to timely and specialized health care is noticeably better throughout the state. (See " Prop 12 Payoff ," September 2007 Texas Medicine , pages 18-24.)
Instead of choosing early retirement, many doctors opted to extend their careers or expand their practices, and many physicians are again willing to take call. Indeed, the promises of these reforms have blossomed because TMA and other groups have worked tirelessly to keep the reform legislation intact.
Now, however, an expected federal legal challenge threatens to overturn the $250,000 cap on physician exposure for noneconomic damages.
On Jan. 22, Adriane Springs, wife of former Dallas Cowboys running back Ron Springs, filed suit in a Dallas state district court. Her suit alleges an anesthesiologist, an anesthesiology group, and a plastic surgeon were grossly negligent in administering anesthesia to Mr. Springs at Medical City Hospital in Dallas. She seeks an unspecified amount of actual, exemplary, and punitive damages from the physicians and their practices for Mr. Springs' past, present, and future loss of earnings, medical expenses, pain and suffering, and loss of enjoyment of life.
Mr. Springs has been treated for type 2 diabetes and received a kidney from former teammate Everson Walls last March. He slipped into a coma on Oct. 12 after a procedure to remove a 2-centimeter cyst on his left forearm.
Ms. Springs isn't stopping with her liability lawsuit. With Washington, D.C., appellate lawyer Robert Peck, president of the Center for Constitutional Litigation, by her side, she plans to file a federal constitutional challenge to the noneconomic damages cap provision in a yet-to-be-determined Texas county, involving as many as a dozen plaintiffs seeking class status. Her challenge will be filed in federal court and will be based on right to trial, due process, equal protection, and right to petition.
The lawsuit will represent the first such challenge to the cap since voters approved it.
TMA strongly opposes efforts aimed at eliminating the noneconomic damages cap and weakening tort reform provisions. If the cap is overturned, physicians' liability insurance premiums would increase, and some physicians would restrict their practices to avoid the risk of a lawsuit. In addition, physicians would be more likely to steer clear of emergency rooms and avoid taking call, accepting complex cases, and practicing in rural areas.
A loss also could signal a full-scale assault on similar damages caps nationwide, according to Jon Opelt, executive director of the Texas Alliance for Patient Access (TAPA).
Beaumont orthopedic surgeon David Teuscher, MD, chair of the TMA Committee on Professional Liability, says the Springs case is a prime example of why physicians must stay in touch with lawmakers to make sure they understand the consequences of any attempt to roll back the reforms in the next legislative session.
"This is definitely a wake-up call for every physician to understand that these tort reforms were hard won and not necessarily forever," he said. "They have to be defended. Now is the time for all TMA members to contact their local legislator and say, 'Don't touch our caps.'
TMA President William W. Hinchey, MD, echoed those sentiments. He said TMA will do everything necessary to preserve the increase in access to quality health care brought about by tort reform.
"We have to be prepared to take any actions we can in response to this serious threat," he said.
A "Creative" Strategy
The Springs-Peck strategy to achieve class action status is "creative," Mr. Opelt says.
"Traditionally, class status has been granted in health care lawsuits usually in cases involving medications or implantable devices. To have a class granted based upon a group's mutual dislike of the cap is novel," said Donald P. Wilcox, JD, TMA vice president and general counsel.
"It's likely that Mr. Peck will seek a friendly venue in which to file the federal suit. Previous constitutional challenges of Texas professional liability caps based on the federal constitution have not been successful," Mr. Wilcox said.
Mr. Peck is no stranger to busting damages caps. He has helped overturn state tort reform laws in Oregon in 1999 and in Indiana and Ohio in 2001.
Thirty states have health care damages caps, and some of them are currently under fire. For example, a Cook County Circuit Court judge in Illinois ruled in November that caps on liability awards violated the state constitution's separation-of-powers clause. The state passed medical liability reforms in 2005. The decision is on appeal in the Illinois Supreme Court.
Mr. Peck plans to file the class action lawsuit in federal court because a challenge to the damages cap has never reached the trial or appellate courts in Texas for a decision, Mr. Opelt says.
Trial Lawyers on the Prowl
Even if the noneconomic damages cap makes it through the Springs-Peck court challenge, Texas' health care liability reforms aren't safe from attack.
TMA, the Texas Civil Justice League, TAPA, and other liability reform advocates are building coalitions with business organizations to identify possible attacks on the reforms and to develop defensive and offensive strategies for the 2009 legislative session.
TMA and its coalition partners fended off six overtly threatening bills and another 150 potentially ominous measures in the 2007 legislature. For example, trial lawyers tried to weaken tort reform last year when they backed a bill that would have reduced the burden of proof in emergency medical care cases.
TMA coordinated efforts among member physicians, prompting them to meet with local government officials and legislators to send a message that such a change would adversely affect patient access to emergency medical services.
With help from TAPA and the Texas Hospital Association, the campaign proved successful. The bills never made it to the Senate floor. (See " Tort Reform Protected ," August 2007 Texas Medicine , pages 35-37.)
Mr. Opelt predicts the following attacks on tort reform provisions in the 2009 legislature:
- The noneconomic damages cap could be challenged with an attempt to raise, index, or create exceptions to it.
- Emergency room protections could be weakened if trial lawyers succeed in reducing the burden of proof.
- The expert witness standard could be modified by potentially changing the provisions surrounding the specialist who is able to provide the expert witness report. In 2003, the law changed to say that the expert had to practice in the same medical area as the defendant. The trial bar wants to eliminate that provision so that any physician, regardless of specialty or practice history, could testify against another physician.
- Report requirements could be under attack. Currently, an expert report must be filed attesting to the injury being the cause of a medical mishap within 120 days after the suit is filed. Plaintiff's attorneys want the filing timeframe extended, and they want reports to be less detailed.
- The right to interlocutory appeals could be eliminated. Interlocutory appeals to a higher court occur in the midst of a trial and allow defendants and plaintiffs to receive a ruling on an appeal while the trial is under way.
- The notion that the noneconomic damages cap also applies in a wrongful death case could be challenged. The wrongful death cap presently stands at about $1.6 million. It's indexed for inflation and continues to grow. Plaintiff's attorneys argue that defendants should get the benefit of one of the caps but not both.
- Plaintiff's attorneys could challenge the handling of small claims that amount to less than $250,000 by saying none of the 2003 reforms should apply to them.
Crystal Conde can be reached at (800) 880-1300, ext. 1385, or (512) 370-1385; by fax at (512) 370-1629; or by e-mail at Crystal Conde .
TAPA's Amicus Briefs
TAPA's Amicus Curiae Committee, which includes a representative from TMA's Office of the General Counsel, works to uphold the legislative intent of health care liability reform. In 2007, TMA, the TAPA Legal and Claims Committee, and the Texas Hospital Association filed briefs in the following cases to fend off efforts to repeal tort reforms in the courts:
120-Day Deadline:McDaniel v. Spectrum
The Texas Supreme Court is faced with whether a docket control order supersedes the 120-day deadline to file an expert report. TAPA believes it does not.
Rule 202 Depositions:In re Raja
The Texas Supreme Court is considering whether the expert report requirement precludes a pre-suit deposition of the physician. TAPA believes it does.
Right to Interlocutory Appeal
This is a consolidated brief addressing 20 cases. TAPA's position is that all 20 cases arguably fall under the court's responsibility to reject deficient, inadequate, or tardy expert reports. Cases shouldn't continue to be extended because due diligence wasn't done on the front end.
Cap Stacking:Summit Care v. Mendoza
This case is pending in the San Antonio Court of Appeals. It was filed under the pre-2003 law and raises the question of whether a plaintiff can recast health care liability claims to add additional defendants to multiply or "stack" caps. TAPA believes plaintiffs cannot.
Paid or Incurred Expenses:Gore v. Faye
The Amarillo Court of Appeals is reviewing whether plaintiffs are entitled to recover only the medical expenses they paid or that were paid on their behalf, or whether they also are entitled to collect "phantom medical bills" for expenses that were discounted or forgiven. TAPA believes plaintiffs are not entitled to phantom damages.
Application of Stowers to Liability Cases:Bramlett v. Phillips
This is a pre-2003 law case in which the court is asked to determine whether refusal to settle a case at the policy limits creates a mechanism for avoiding or exceeding the wrongful death cap. The decision could affect as many as 1,000 wrongful death cases. TAPA believes a carrier's refusal to settle a case at the policy limits doesn't create an exception to the wrongful death cap, which is currently about $1.7 million and fluctuates based on inflation.
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