Tort Reform Threatens Ebola Victims’ Rights

What does tort reform mean for Texas? It means that a hospital emergency room can negligently cause an Ebola outbreak without facing medical malpractice liability. Earlier this month, Thomas Duncan visited a Dallas area hospital. He was discharged while infected with the deadly Ebola virus. He had the symptoms and the hospital knew that he had recently visited Liberia, where the virus is running rampant. Duncan was given antibiotics and sent home. Lapses in the hospital’s protocol mean that anyone Duncan came into contact with could have contracted the deadly disease. The hospital however, is not likely to face any medical malpractice consequences. In Texas, it is extremely difficult to succeed on a medical malpractice case. In most states, a plaintiff must show that the emergency-room physician acted negligently. As a result of tort reform, a patient in Texas has to not only prove that the physician or hospital consciously put him/her at an extreme risk but also show by way of a medical expert’s opinion that bad care by a doctor or hospital caused the injury to the patient. This is a tremendously difficult hurdle to overcome. Furthermore, the liability for non-economic damages, such as the distress of losing a spouse or the pain a child feels from never seeing her parents again, is capped for doctors and hospitals. Because of Texas tort reform, a plaintiff cannot recover more than $250,000 from a doctor and $250,000 from a hospital for these damages. Hospitals are better off killing a patient than maiming one. This may sound harsh, but from a financial perspective, it is absolutely true. Economic damages such as medical expenses and future care are not capped, but non-economic damages are.

Unfortunately for Duncan, the disease ultimately proved fatal. Does his family have a claim against the hospital for misdiagnosing their loved one? Yes, but unfortunately, it will be a very difficult claim to succeed on, and even if successful, their recovery would be capped. There are also two nurses who treated Duncan and contracted the disease due to lapses in the hospital’s procedures. Are they likely to have a successful claim? Realistically, any of these victims would have a difficult time finding an attorney to represent their case. Plaintiffs’ lawyers in Texas know how difficult medical malpractice claims have become. At Arguello Law Firm, PLLC, we do handle such cases, but we only accept a small percentage of the medical malpractice claims that we see.

Since tort reform began a little over 10 years ago, there has been a dramatic drop in medical malpractice cases in Texas. This is exactly what insurance companies had in mind when lobbying for the change. Not only have the number of claims plummeted, but a claimant’s potential recovery is now limited. Practically speaking, if a physician or hospital makes a mistake which paralyzes a patient, they could be liable for millions of dollars in future medical expenses. On the other hand, if a hospital makes a mistake which kills a patient, there are no future medical expenses. The victim’s family could likely not recover more than $250,000 for the death of their loved one.

Insurance companies did a phenomenal job of putting a few ‘frivolous’ cases in the spotlight. They convinced millions of people that there are simply too many lawsuits. There are just too many people looking for a pot of gold at the end of the litigation rainbow. The harsh reality is the patients who are injured the worst are the ones who suffer. For Duncan’s family who lost their loved one to a misdiagnosed disease, for the nurses who were infected because of the hospital’s mistakes, it’s too bad that their injuries occurred in Texas.

Source: www.reuters.com