What Is Tort Reform, Anyway?
Tort reform is a phrase that gets tossed around quite a bit, usually by politicians and lobbyists, but what does the phrase really mean? Torts are activities by “at-fault” parties that cause harm and that victims seek compensation for via lawsuits. Tort reforms are the actions taken by various entities to decrease the amount of litigation and reduce the damages recovered by plaintiffs in tort cases.
Broadly speaking, tort reform seems fairly easy to grasp. Basically, it involves attempts by both litigators and legislators to restrict the ability of plaintiffs to pursue personal injury claims by implementing stricter procedures and by capping maximum recovery in cases. However, when examined in more detail, it is a complicated and contentious component of the legal landscape, especially in Texas.
Who Are the Players?
Advocates of tort reform argue in favor of limiting the type and number of cases that can be heard in addition to creating limitations on recoverable damages. They claim that exorbitant cases and damages place too great of a burden on the cost of doing business and daily living for private citizens. They further suggest that civil litigation leads to companies increasing the price of products and services to cover the costs of lawsuits, especially as these expenditures relate to increasing insurance premiums.
In contrast to the proponents of tort reform, consumer advocates argue that it limits plaintiffs’ ability to seek justice to the fullest extent. They claim that instituting restrictions and maximum caps on damages ignores the unique circumstances surrounding each case and ultimately punishes the plaintiffs who were injured to begin with. They also argue that insurance rates will increase in spite of the growing number of tort-related lawsuits in the United States.
In general, insurance companies and big business are in favor of further tort reform. Conversely, plaintiff attorneys and consumer advocates are generally against tort reform.
Tort reform laws are almost exclusively enacted at the state level, and Texas has played a more active role than most states in passing tort reform legislation over the past decade. In 2003, the first Republican majority of the Texas State House of Representatives since Reconstruction passed House Bill 4 (HB4) after some of the most intense debate in the history of that institution. This cleared the way for significant tort reform.
According to one of the authors of the bill, Joseph Nixon, HB4 wasn’t especially unique in any way other than its comprehensiveness: “This bill contained procedural, substantive, evidentiary, medical malpractice, and general civil reforms needed to extinguish the litigation crisis,” said Nixon. “The reforms were modeled after laws adopted in other states or procedures used in the federal court system. The only unique thing about HB4 was that so many reforms were contained in one bill.”
That may have been the most unique thing about HB4, but the most significant was that it put a $250,000 cap on non-economic damages while also altering the standard of negligence to “willful and wanton,” essentially relieving defendants of any responsibility for wrongdoing as long as long as the harm they inflicted wasn’t intentional. Additionally, HB4 holds the losing party in a civil case responsible for the opposing party’s legal fees.
Since this bill has been passed, most proponents of tort reform would have you believe that the state of Texas has become a wellspring for defendant-heavy professions – like medicine where doctors may face medical malpractice suits. Free of concern that they could potentially be harmed by the judicial system, an influx doctors should have either returned or moved to Texas to practice medicine in relative comfort and security from frivolous lawsuits. Obviously, HB4 advocates believe that this has been a major boon to the economic viability of the state and allowed for substantial growth in the medical field, simultaneously increasing citizen’s access to health care and reducing costs because of less litigation.
Now for the Bad News
As most of us are not physicians or CEOs of insurance firms, HB4 is a classic example of citizens voting against their own interests. A study released in 2012 by a group of researchers led by University of Texas Law Professor Charles Silver found that health care costs had not decreased since HB4 was originally passed – despite recent data that shows medical malpractice claims have declined by nearly 70%, as the losing party must now pay all court fees related to their case – including those of the opposing party. This significant drop-off is not indicative of a sudden decrease in medical malpractice incidents or a course correction of plaintiff dishonesty. Rather, it appears to be a clear example of the powers that be flexing their financial and legal muscle to intimidate victims of personal injury from pursuing justice.
Furthermore, since caps were placed on medical malpractice, the average recovery for injured plaintiffs has decreased more than 20%. This means that those who have been marginalized by society – the poor, the disabled, the retired – are becoming increasingly less able to secure effective legal counsel because attorneys often feel that the risks inherent in these cases is now too great, as they can cost upwards of $100,000. In other words, litigating – especially medical malpractice cases – in Texas has become cost prohibitive, even in clear cases of negligence and harm.
As for the insistence that Texas has a seen a major influx of physicians over the last ten years, research conducted by Silver and his team strongly opposes such claims. These “new physicians” primarily include those who have filled vacancies and those who do not work clinically. When these factors are taken into consideration, their growth rate compared to other states is relatively low. Perhaps most surprisingly, the number of direct patient care doctors in Texas has grown less rapidly post-HB4 than it did before.
The story of Connie Spears tragically illustrates how tort reform has harmed individuals who have been affected by medical malpractice. In 2010, Connie Spears made a trip to the emergency room of Christus Santa Rosa Hospital complaining of severe leg pain. Despite having a history of blood clots, she was sent home with a mild diagnosis. A few days later, Spears had to have both of her legs removed in a life-saving procedure after a major clot and severe tissue damage was discovered.
Due to insecurities arising from HB4, she was unable to find malpractice counsel for two years. Under the notorious tort reform bill, plaintiffs must find an expert medical witness within 120 days of filing suit, and after an oversight caused her first witness’ testimony to be disregarded, her attorney was unable to secure another expert within the allotted time frame. As a result, Mrs. Spears was ordered to pay thousands of dollars to cover the legal fees of some of the defendants in the case. (To their credit, Christus Santa Rosa Hospital did not pursue the recovery of their legal costs out of empathy for her situation.) As a result, Connie Spears’ retirement savings were depleted, her husband became unemployed, and they were afraid they would lose their home. Sadly, she passed away of unknown causes less than a year later.
The Crosley Approach
At Crosley Law Firm, our experienced and skillful attorneys possess comprehensive knowledge of HB4 and routinely handle personal injury cases in the new legal landscape of tort reform. We know that being injured and pursuing a lawsuit can be a difficult time for everyone involved, so we aim to make the legal process as smooth as possible while doing our best to achieve optimal recovery for you and your family.
If you or a loved one has experienced personal injury, including death, as a result of another party’s negligence, please call us at (877) 535-4529 or fill out the free case review form on our website. Our free consultations are detailed and professional. We are happy to discuss the unique circumstances of your case and to clarify any questions you have concerning past or present issues related to tort reform. Remember, the statute of limitations for most personal injury cases in Texas is only two years from the date of the injury, so please don’t hesitate. Call today.
Aaronson, B. (2013, January 24). Despite counsel, victim is hindered by tort laws. New York Times. Retrieved from http://www.nytimes.com/2013/01/25/us/even-with-counsel-texas-amputee-is-hindered-by-state-tort-laws.html
Associated Press. (2013, September 3). 10 years of tort reform in Texas bring fewer suits, lower payouts. Insurance Journal. Retrieved from http://www.insurancejournal.com/news/southcentral/2013/09/03/303718.htm#
Nixon, J. (2013). Ten years of tort reform in Texas: a review. The Heritage Foundation. Retrieved from http://www.heritage.org/research/reports/2013/07/ten-years-of-tort-reform-in-texas-a-review
Roser, M. A. (2012, June 20). New study: Tort reform has not reduced health care costs in Texas. The Statesman. Retrieved from http://www.statesman.com/news/news/local/new-study-tort-reform-has-not-reduced-health-care-/nRpcp/
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