The Dallas Morning News columnist Steve Blow wrote last weekend about a local couple who have been picketing a nursing home because a relative died there. The couple is frustrated because every lawyer they've talked with has told them that lawsuits against nursing homes are essentially worthless in Texas since passage of "tort reform" in 2003. I agree with those lawyers.
The irony is that this couple describes themselves as conservative Republicans who are opposed to frivolous lawsuits. My guess is that they cheerfully voted for tort reform, thinking the changes in laws would never affect them. Now that the wife's father was allegedly killed through the nursing home's negligence, they suddenly have a different viewpoint on tort reform.
We get calls or e-mails every week from people in this situation, and we always have to explain that in Texas there is not much reason now for nursing homes, or to a slightly lesser extent doctors or hospitals, to worry about the level of care they give. They know they are not likely to be held accountable in the judicial system for their negligent acts. Here are excerpts from the newspaper column:
Bill owns a business installing audiovisual equipment. Kelly is a teacher. The Frisco residents identify themselves as conservative Reagan Republicans. Bill still considers himself a supporter of lawsuit limits.
“But you don’t throw the baby out with the bath water,” he said. “Frivolous lawsuits are one thing, but legitimate ones need to be heard. And they’re not.”
But when they consulted with attorneys, they heard the same story over and over. Sorry, the lawyers said, but we don’t take nursing-home cases anymore.
Lawsuit changes approved by the Texas Legislature in 2003 capped noneconomic damages at $250,000. And since elderly, infirm nursing-home residents can’t show loss of earnings or other economic damages, that $250,000 becomes the most they can receive.
Mounting a medical malpractice case is expensive and time-consuming, and lawyers say they simply can’t afford to pursue a case with a maximum award of $250,000. So the threat of lawsuits against Texas nursing homes has virtually disappeared — along with their incentive for quality care.
Consumer advocate N. Alex Winslow of Texas Watch said medical malpractice restrictions are “generally awful” in Texas, but their effect on nursing-home residents is “acutely despicable.”
“We’re talking about the most vulnerable in our society — the elderly and disabled. We should be doing everything in our power to protect them,” Winslow said.
He said he knows of no study to document a decline in nursing-home quality, but he is confident that lawsuit caps have caused it. “It has to have,” he said. “Absent the possibility of being held accountable, it’s human nature to start cutting corners.”