Dallas Fort Worth Injury Lawyer Blog

As a Texas medical doctor and Medical Malpractice attorney, I am providing this case law update and commentary.

As part of Texas's tort reform laws, enacted by the Texas legislature in 2003, one of the requirements in order to file a medical malpractice claim, was the furnishing of a medical expert's report within 120 days of filing the lawsuit.The 5th District Court of Appeals says that the legislation serves the state's interest in preventing frivolous medical liability lawsuits and related health care system costs. This medical expert report requirement is also known as the Texas' certificate-of-merit law, and is similar to many other states' medical malpractice reform.

Recently Texas' certificate-of-merit law passed another constitutional challenge after the 5th District Court of Appeals validated the requirement for plaintiffs to file an expert report demonstrating the merits of a medical liability case.

The 5th District Court of Appeals rejected arguments that the legislation amounted to an unconstitutional special law that treated medical liability lawsuits differently from other cases. Further, the court said that the provision subjecting plaintiffs who file a deficient report to financial penalties does not violate the constitutional separation powers.

Trial court judges have discretion to determine the amount of monetary sanctions and to inquire whether plaintiffs made a good-faith effort to pursue a medical malpractice or wrongful death case.

The August 12 opinion states that the expert report requirement "rationally relates to the interest of the state to prevent medical practitioners from defending frivolous claims at a high cost to the health care system."

According to the Texas Medical Association's statistics, since the 2003 law was enacted as part of a liability reform package that included a $250,000 noneconomic damages cap, Texas has seen a 50% drop in medical negligence cases, a 30% reduction in physicians' liability insurance rates and more than 20,000 newly licensed doctors.

Critics of the law state that those changes may have happened anyway because of the increase in Texas' population, which boomed as a result of the oil and gas business and the resulting need for more physicians and that as a function of doctors per capita, Texas is actually less served by the total number of physicians. So the new law is a red herring and an excuse for the insurance companies to be treated as a special interest deemed worthy of protection. Is it any wonder that the shiniest, tallest and the most aesthetically pleasing buildings in Texas are owned by insurance companies? Follow the money trail my friends.

The Texas liability reform package is now being touted as a role model for other states to deny plaintiffs their day in court.

The added expert report requirement means an extra layer of protection for physicians and hospitals. Plaintiffs in medical malpractice claims have to show ahead of discovery that they have a meritorious claim, whereas in any other personal injury claim, for example a car wreck injury case, you can take depositions and exchange discovery to determined what happened. In 2006 the Oklahoma Supreme Court ruled that invalidated the state's certificate-of-merit statute as a special law.

The Legislature's imposition of mandatory sanctions, of the defendant's cost of defense and attorny fees, if the medical expert's report is considered defective, usurps judiciary's powers and places an unfair burden on plaintiffs who make a good-faith effort to pursue a case. The cost of defense and attorney fees can be in thousands of dollars that the plaintiffs will have to pay.

This ruling arises from a wrongful death claim Joshua Hightower's parents filed after their son died from complications of rabies contracted during a kidney transplant at Baylor University Medical Center in 2004. Other patients who received organs from the same donor also died of the disease.

The Hightowers filed two physician expert medical reports supporting their claim that the surgery was risky given the donor's history of drug use and incarceration, and that the hospital and transplant doctors misrepresented the risks involved.

A trial court found the reports deficient and dismissed the case. The appeals court agreed, saying neither report showed "a connection between the donor's alleged high-risk status and the rabies virus. ... Joshua was injured by rabies, a condition of the donor that no one was aware of at the time of the surgery."

The judges said that "expert reports need not demonstrate all of a plaintiff's proof, but they must explain the basis of the expert's statement to link the conclusions to the facts."

Having been involved in many medical malpractice cases, I know first hand of the difficulties in obtaining a medical expert's report that is not conclusory and that adequately addresses the standard of care, the conduct that involves the deviation of the standard of care, the damages that result and the causation ie how the deviations caused the damages.

In other words the doctors who write these reports have to understand complex legal theories and case law in order to write reports that pass muster with the court. Doctors are not lawyers and because of their training they do not understand the legal basis of the claim. They understand the medicine but these reports are not about the medicine but law. You therefore have no medical personnel unless they have a legal background or exposure, being able to write these legal treatises which is basically required to pass the court's muster.

Meanwhile in California...
State public health officials have fined 12 California hospitals for medical errors that hurt or killed patients, according to a report. Three of the hospitals — L.A. County/USC Medical Center, Torrance Memorial Medical Center and Brotman Medical Center — are in Los Angeles County.

The penalties were issued for errors such as leaving foreign objects in patients' bodies during surgery and administrating the wrong medication. They occurred in 2009 and 2010. The fines, which hospitals can appeal, range from $50,000 to $75,000 for each mistake.

"Most of these are preventable medical errors," said Ralph Montano, spokesman for the California Department of Public Health. "Either someone was harmed or killed or likely to be harmed."

So here you have it folks, the rich get richer and the usual poor plaintiffs get the short end of the stick.

The personal injury sage continues. As a Fort Worth Personal Injury attorney I am writing this blog to hopefully provide insight to my readers, about the law works with its byzantine rules and regulations.

The Law and its practical applications are murky at best and we as lawyers have developed our own rituals and our own special language. Because if we spoke in plain English, then it would not be special anymore.

In my last missive I detailed the week before an actual trial that we were getting ready to do on our slip and fall case. The case got continued. Now we are using this opportunity to continue in our siege of the defendants castle. We continue to press our charge and are unrelenting in our skirmishes.

The defendants strategy in every personal injury case, irrespective of the claim, is to first deny the claim, then to deflect the claim ie somebody elses fault and then finally to delay the case going to trial. They hope with this strategy with wear out the plaintiff and make the cost of litigation prohibitively expensive to continue.

This standard strategy is designed to sap the will of the opponent, to make the risk reward ratio tilt in their favor. This tactic may have traction in some quarters especially in the claim is weak or ill founded, but to us it is like waving a red flag to a bull. We are only spurred on, and I have a natural dislike for bullies, and that is what the defense are; bullies by any other name are still bullies, with their repeated denials and rejections of liability and fault.

In this particular instance, we have been at it for over 3 years. The defense is a stubborn lot, mangy and dogged in their delay tactics. We shall prevail, Justice will triumph in the end and the dark forces crushed.

Ultimately the defendants insurance is going to rein them in especially when they have spent more in defending this case than they could have settled it for. They are consumed by over reaching hubris and a lack of common sense. They will ultimately lose this account.

"Cry havoc and let slip the dogs of war."

And so it begins, twenty four hours from now, with a drop of the hammer and a cry of "Order, Court now in session," the battle banners would have unfurled with the sounds of trumpets.

As a Fort Worth Personal Injury Attorney, I would like to offer the following insights. As I mentioned in my last posting from the battlefront, we were due in court tomorrow to argue our slip and fall case which just got canceled and set for a new date.

The foul air would have been filled with the clanging of steel, the clashing of shields, the stench of panic and fear permeating the air to be supplemented with whiffs of gunpowder. My friends, this was no ordinary skirmish, but the accumulation of 3 years hard labor. But it was not to be...

My friends that is what a court room feels and sounds like, all shrouded in the fog of war and at the end of the day, one victor and the vanquished. Carnage and havoc for both.
Trials are no easy things and the plaintiffs all want their day in court. It is hard to then explain to them when you get a worse deal at trial that in settlement talks a year earlier.

In this particular battle, the decision to go to war was easy, we had no offers to settle or offers through mediation. Here, if we had failed to press our charge and we lost, what did we lose? We came with nothing and left with nothing. Then the next time the defense would know we spared no quarter, we yielded no ground, and we fought to the last man. Each man died a hero, with sword in hand, a bloody battle indeed.

In this battle dear readers, there are no prisoners.

Continue reading "Fort Worth Personal Injury Attorney Who Will Fight For You 817-900-8439" »

A federal investigation has found that Texas is failing to protect disabled residents who are living in large state facilities, from possible lapses in health care.

The U.S. Justice Department said in a report that deficiencies in staffing put residents in 13 facilities at risk of abuse and neglect .

The probe concluded that serious problems and deficiencies in care currently exist throughout the facilities where nearly 5,000 vulnerable Texans live.

"We have concluded that numerous conditions and practices at the facilities violate the constitutional and federal statutory rights of their residents," said an assistant attorney general in the Justice Department's Civil Rights Division.

Continue reading "Texas Failing to Protect Patients From Abuse And Neglect " »

A congressional report out Monday September 15, 2008 says 1,600 U.S. nursing homes — nearly one-third — have been cited for abuse.

Some 5,283 nursing homes were cited for abuse violations, according to a review of state inspection records requested by Rep. Henry Waxman, D-Calif. These homes were cited for nearly 9,000 abuse violations from January 1999 to January 2001.

Continue reading "Nursing Home Abuse Increasing" »