Texas Malpractice Damages Cap Supporters Questioning Constitutionality
In a surprising move the Texas Hospital Association and the Texas Medical Association are asking the Texas Supreme Court to decide whether the law capping damages to victims of medical malpractice is constitutional. Questions have arisen about whether the cap violates people’s rights to equal protection, due process and jury trials, among other constitutional provisions. “We have to be certain that the cap is constitutional, and the only body that can tell us that in Texas is the Supreme Court,” said Austin attorney Mike Hull, who launched the call. Critics argue that the consequence could limit future challenges in state courts and feel that the tactic is intended to prevent a future case that would make a stronger challenge as well as the concern that making a direct appeal to the Supreme Court with this case violates Texas rules. “This is another way to put more nails in the coffins of people who are dying because of medical malpractice,” said Mark Werbner, a Dallas plaintiffs’ attorney. Critics further say the cap has limited patients’ with little income rights to seek compensation after suffering life-threatening injuries at the hands of a doctor and establishment. “If you have economic damages, a corporate CEO, a doctor or a lawyer probably can still get to court,” said Alex Winslow, executive director of Texas Watch, a consumer advocacy group in Austin. “Stay-at-home moms, retirees, a child, elderly people, chances are you won’t.” The poor, he said, are disproportionately affected because they depend more on non-economic damages. With the awards capped, patients cannot recover enough to pay for the cost of such lawsuits. As an example, single mom Vicki Rohall had a hysterectomy and a surgical instrument was left inside her body. She later went into septic shock and a coma. Although she had insurance, it didn’t cover all the costs, and she said she was left with $100,000 or more of hospital bills to correct the surgical errors. Rohall has an attorney, but the cost of filing a lawsuit on her behalf is cost prohibitive because of the cap. On the surface the move by the Texas Hospital Association and the Texas Medical Association sounds good, but what do they have to gain by the Supreme Court’s decision and will the Supreme Court even hear their arguments?
