Texas Courthouse Doors Slamming Shut For More Citizens

The weekly newspaper The Texas Lawyer recently featured a review of the year 2005 as related to various legal practice areas. The changes in laws regarding personal injury were summarized by Dallas lawyer Mary Alice McLarty. The article:

PERSONAL-INJURY LAW: Slammed Courthouse Doors

by Mary Alice McLarty

The most significant trend in personal-injury law in 2005 is how Texas families, already devastated by needless death and injury, are experiencing the full impact of the so-called tort reforms handed down by the Texas Legislature in 2003.

The citizens of Texas, especially those harmed by medical negligence, are too often finding the courthouse doors closed. The most onerous portion of the draconian medical malpractice bill, codified in Chapter 74 of the Civil Practice & Remedies Code (CPRC), is the $250,000 cap on non-economic damages. Attorneys also are finding it more difficult to effectively represent families, because of provisions such as the nonsensical declaration in the definitions of CPRC §74.001, which declares that "all persons claiming to have sustained damages as a result of the bodily injury or death of a single person are considered a single claimant."

Thus, nursing-home negligence cases under the new laws are almost impossible, which will inevitably lead to more negligence and abuse of the elderly being hidden from public scrutiny. Lawyers across Texas have the sad task of explaining the new economic reality to families seeking help: that their loved one did not have economic value, therefore no one will be held accountable for the medical negligence.

Adult children of a nursing-home resident who has been injured or has died as a result of negligence in a nursing home are finding that, because their loved one does not merit economic damages, the maximum recovery is $250,000. After the cost of litigation and a trial, the survivors could find themselves winning the case but realizing no recovery.

Texas families are realizing that the so-called tort reforms pushed by insurance and corporate interests had little to do with frivolous suits and a lot to do with further shifting the scales of justice against Texas families.

Negligently injured elders, children and stay-at-home spouses will continue to suffer due to unfair non-economic caps of the medical negligence statute, Civil Practice & Remedies Code Subchapter G, §74.301. Texas politicians have chosen to address the epidemic of preventable medical malpractice by making it more difficult to pursue medical and nursing-home accountability in the justice system. Filings in the courthouse are definitely down, but at what cost?

The reality of this legislation is starting to receive notice. Recent articles in several Texas publications have chronicled individual negligence cases and the inability of Texas families to access the civil justice system. This media attention is well-deserved and should be encouraged. Some law firms are adjusting by going into commercial litigation and making other proactive changes, but citizens have nowhere else to turn.

The Austin American-Statesman recently reported that the Office of Patient Protection, created by the Legislature in 2003 to placate consumer advocates, has been closed. Interestingly, physicians are still paying $1.2 million every two years in license fees for the agency, with that money now being channeled to general state coffers instead.

Additionally, the Texas Supreme Court continues to favor insurance and corporate interests, including an Oct. 28 ruling, In Re: Weekley Homes LP, holding that a personal-injury claim of a family member who was not a signatory to the contract for a home purchase was still subject to the contract's arbitration clause.

The ominous trend toward more binding arbitration and less access to a jury trial continues. There is one bright spot: Effective Jan. 1, 2006, Texas jurors started receiving $40 a day after the first day of service, which is a huge difference in almost every county in Texas.