The medical malpractice attorneys of Passen & Powell have often voiced our objection to so-called “tort reform”: legislation intended to reduce medical insurance companies’ liability exposure by reducing the amount of money that the victims of malpractice can recover. Such “reforms” are simply unjust. In effect, a legislature passing such “reforms” says to the victims of medical negligence: sorry, you should not be fully compensated for the harm that was done to you because it is more important inflate the pocketbooks of insurance companies.
Our attorneys are firmly opposed to any such reform in Illinois. Indeed, a look back at what has occurred in Texas after the passage of tort reform clearly illustrates that such measures create unjust results.
Texas passed its tort reform legislation in 2003. This legislation was in the same mold as other tort reform proposals – it was designed to make it harder for those injured or killed by medical negligence to fully recover for the harm they suffered. The two principal provisions of Texas’ medical“tort reforms were: (1) caps on non-economic damages and (2) a heightened standard for imposing liability on emergency-room physicians. It is exactly these types of “reforms” that attorneys such as our medical malpractice lawyers have worked hard to fight in Illinois.
The Texas reforms placed a cap on noneconomic damages: $250,000 per health care provider (doctor, hospital, etc.) and a maximum award of $750,000 from all defendants relative to a single incident. Non-economic damages are damages above and beyond the out-of-pocket expenses associated with medical negligence — past/future pain and suffering, disability, disfigurement, loss of companionship, loss of society, etc.
The change in the liability standard for emergency-room doctors was more insidious. Under the new law, emergency-room physicians cannot be held liable for the harm they inflict on helpless patients unless they act with “willful and wanton” disregard.
The combination of these two “tort reform” provisions has greatly harmed patients in the state of Texas – but has been all to the benefit of the state’s medical insurance companies. Meanwhile, patients who have been injured by medical negligence, and the families of patients who have been killed by such negligence, are unable to recover the full amount of their damages, or even to find an attorney to help them bring suit in the first place. Our top medical malpractice attorneys believe that if such reforms ever stuck in Illinois, we would see similar results here.
Indeed, a study out of the University of Texas School of Law has found that from 2003 (when the “reforms” began) and 2007, medical malpractice claims filed in the state have dropped by 60 percent. And of those claims that are filed, payouts per claim have dropped by a third.
But doctors themselves have reaped the rewards of the new laws. Statewide, malpractice insurance rates have fallen by nearly 30 percent since the Texas “tort reforms” went into effect. So, there is more money in Texas physicians’ bank accounts – at the expense of those who are grievously injured or killed by their negligence.
As Brant Miller, a Texas cardiologist and attorney, has stated, “what Texans don’t know is that their Legislature has mandated a very low standard of care – almost no care.” It is exactly this result that worries medical malpractice attorneys such as those at Passen & Powell. Not only does “tort reform” wreak an injustice on those who are injured, denying them full compensation for their injuries, but it also has a deeper, systemic effect. Over the course of only a few years, doctors become adjusted to the new standard, and all patients begin receiving less concerned, less effective, and more dangerous treatment.
For example, Connie Spears of San Antonio, Texas, was admitted to a local emergency room on the Friday before Memorial Day weekend with excruciating leg pain – leg pain she had felt before. You see, Ms. Spears had previously had dangerous blood clots. In fact, she had had a blood filter installed in one of the principal veins in her heart for just this problem. The emergency room doctor, however, simply discharged her after a few tests and told her to follow up after the holiday with her primary-care physician.
Before the weekend was over, Ms. Spears was “delirious,” and her legs were so dark that they resembled red wine. She was rushed to another emergency room, which discovered that her vein filter had become clogged with clots, and she was suffering kidney failure and tissue death in both legs. Her legs were both amputated in order to save her life. She now needs assistance with everyday tasks such as showering and using the bathroom. Her life will never be the same.
Yet Ms. Spears has been completely unable to find a medical malpractice attorney to represent her. The problem? The combination of the Texas caps on non-economic damages and the unreasonably high standard for liability for emergency-room physicians. Every lawyer Ms. Spears has spoken to has told her that she deserves compensation, and that she would have a winning case – in any state but Texas.
For a free consultation with an experienced Chicago medical malpractice attorney at Passen & Powell, call us at (312) 527-4500.
