Geoffrey Schorr
By Geoffrey E. Schorr
In 2003, powerful lobbyist groups in Texas spent millions of dollars and utilized significant resources to flood the media with a campaign directed at having voters vote for an amendment to the Texas Constitution to cap non-economic damages in medical malpractice cases (non-economic damages are intangible damages such as pain and suffering and mental anguish). The legislation passed by the slightest margin (51-49%) and victims of medical malpractice in Texas since 2003 have found it very difficult to secure justice, or to even find a medical malpractice attorney accepting medical malpractice cases because the caps are so restrictive that most attorneys are unable to finance such cases without losing money. Essentially, because of the 2003 changes to Texas medical malpractice laws, negligent doctors have been provided with an escape from accountability, and innocent victims rarely achieve justice.
Lobbyists for medical malpractice caps used scare tactics to persuade voters – for example, some claimed that because of “frivolous lawsuits” doctors were fleeing Texas, and, therefore, Texans would find it increasingly difficult to secure medical care. This simply was not true!
Just as with Texas, special interest groups in Nevada also used publicity stunts to sway voters in that state to cap non-economic damages in medical malpractice cases. The Nevada lobbyists seemed to have adopted a page out of the book used by the lobbyists in Texas – making the same false claims to voters in that state that were used by lobbyists in Texas. Unfortunately, the lobbyists disingenuous efforts worked, and voters in Nevada voted to cap non-economic damages for medical malpractice cases at $350,000 ($100,000 more than the current cap in Texas of $250,000).
However, caps in Nevada may be repealed this year. The Las Vegas Sun reports that Nevada lawmakers are grappling with removing the caps on non-economic damages in that state because of a recent inexcusable act of malpractice. Recently thousands of patients were exposed to the very dangerous Hepatitis C virus at a clinic in Nevada, apparently because the doctors running the clinic have been more concerned with their bottom line than with the safety of their patients. As a result, Nevada lawmakers are considering removing caps so that innocent victims may hold the clinic and its doctors accountable. This would be a win for the victims of medical malpractice in Nevada.
The effects of the caps have been devastating to victims that live in states where caps have been instituted. One example contained in the Las Vegas Sun article referred to above involves a young 25 year old woman, mother of two children, who underwent a surgery to have rods placed in her back to help with her scoliosis. The surgeon informed her that she would be out of the hospital and walking within two days of the surgery. Unfortunately, the young woman was paralyzed as a result of the doctor’s negligence, never to walk again, and the most she is allowed to recover under Nevada’s current law for her pain and suffering and mental anguish is $350,000. Disturbingly, in my practice, I learn too often of stories that are very similar and happen to innocent victims of medical malpractice in Texas.
Hopefully, in the not too distant future, the same type of anti-cap movement that is happening in Nevada will begin in Texas. Too many Texans have already been devastated by the caps, and many more will be in the future until the laws are changed to allow Texans to hold negligent doctors accountable. With the current caps Trial Lawyers in Texas have their hands tied, and negligent doctors have little to deter them from committing and repeating negligent behavior.