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Many attorneys believe that House Bill 4 has had its intended, although unstated, effect, and that health care providers are now essentially litigation-proof in cases in which the losses are primarily non-economic. As lawyers read the text of H.B. 4 — the tort reform bill the Texas Legislature passed in 2003 — they might say to themselves, “This can’t possibly be the law.” But they would be wrong. Section 74.301(a) of the Texas Civil Practice & Remedies Code (CPRC) provides that “[i]n an action on a health care liability claim … the limit of civil liability for noneconomic damages of the physician or health care provider other than a health care institution … shall be limited to an amount not to exceed $250,000 for each claimant.” And according to 74.001 of the CPRC “[a]ll persons claiming to have sustained damages as the result of the bodily injury or death of a single person are considered a single claimant.” So, how does the plaintiffs bar address these inequities? To begin with, plaintiffs lawyers must make maximum use of existing damage models in preparing and presenting their cases. They must pay particular attention to the pecuniary losses that do not fall under the limitations of H.B. 4. The Texas Pattern Jury Charge defines pecuniary loss in wrongful-death cases to include “the loss of the care, maintenance, support, services, advice, counsel, and reasonable contributions of a pecuniary value” that the plaintiff would have received had the decedent lived. Now, compare the elements of “pecuniary loss” to the constituent elements of the definition of “non-economic loss” contained in 41.001(12) of the CPRC. It defines “non-economic damages” to include damages awarded for the purpose of compensating a claimant for “mental or emotional pain or anguish, loss of consortium … [and] loss of companionship and society, inconvenience, loss of enjoyment of life, injury to reputation, and all other nonpecuniary losses of any kind other than exemplary damages.” No jury on earth would recognize a difference between damages to which the limits do not apply, such as “care, maintenance, support, services, advice, counsel, and reasonable contributions of a pecuniary value” on the one hand, and damages to which the caps do apply, such as “mental or emotional pain or anguish, loss of consortium … [and] loss of companionship and society, inconvenience, loss of enjoyment of life, injury to reputation, and all other nonpecuniary losses of any kind other.” In other words, what is the difference between a surviving spouse’s loss of the decedent’s “care, maintenance, support, services, advice, and counsel” and the surviving spouse’s “mental or emotional pain or anguish, loss of consortium … [and] loss of companionship and society “? In a word, none. In pleading a case, plaintiffs counsel should expressly plead each pecuniary item separately. Loss of care, maintenance, support, services, advice and counsel should each be treated as a separate element of the claim. While the court may combine them in a single issue, as does the Pattern Jury Charge, counsel should exercise care to emphasize to the jury each of these separate elements. Counsel should also retain economists whose economic loss analysis includes these real, but often ignored, economic losses. Another method for addressing the challenges presented by H.B. 4 is found in the exemplary damages provisions of the CPRC. SOFT DEFINITIONS Section 41.008 of the CPRC limits recovery of punitive damages to an amount “not [to] exceed an amount equal to the greater of: 1. two times the amount of economic damages plus an amount equal to any noneconomic damages found by the jury, not to exceed $750,000; or 2. $200,000.” But 41.008 does not apply to a cause of action against a defendant who “knowingly or intentionally” engages in conduct described as a felony in 19.02 (murder); 19.03 (capital murder); 20.04 (aggravated kidnapping); 22.02 (aggravated assault); 22.011(sexual assault); or 22.021(aggravated sexual assault) of the Texas Penal Code. According to Texas Penal Code 22.02(a), assault is “intentionally or knowingly causing bodily injury to another.” The assault is “aggravated” if the injury is “serious.” According to 6.03, “[a] person acts intentionally, or with intent, with respect to the nature of his conduct or to a result of his conduct when it is his conscious objective or desire to engage in the conduct or cause the result” and “[a] person acts knowingly, or with knowledge, with respect to the nature of his conduct or to circumstances surrounding his conduct when he is aware of the nature of his conduct or that the circumstances exist. A person acts knowingly, or with knowledge, with respect to a result of his conduct if he is aware that his conduct is reasonably certain the cause the result.” In every case involving a serious injury, plaintiffs counsel must plead that the “defendant knowingly or intentionally caused serious bodily injury.” This alone pleads facts sufficient to avoid the limitations on punitive damages contained in the CPRC. The definitions of “intentional” and “knowing” contained in the Penal Code are imprecise. They are soft because on a societal basis Texans fill in the gaps for culpable mental states, agreeing implicitly that certain types of conduct are criminal and using the convention of language to define that conduct. But as a matter of practice, using Penal Code definitions to define or limit liability in a civil case doesn’t really work well. For example, the definition of “knowing” in the Penal Code — which includes the language that a person acts knowingly “when he is aware of the nature of his conduct or that the circumstances exist” — is utterly meaningless. No medical malpractice case exists in which the defendant would ever say that he or she wasn’t “aware of the nature of his [or her] conduct.” For this reason, in any case where a jury finds that a defendant was negligent, a jury is likely to also find that the defendant was “aware of the nature” of his or her conduct, thus making the limitations on punitive damages in the CPRC inapplicable. Stephen Malouf, a partner in the Law Offices of Stephen F. Malouf in Dallas, is a plaintiffs attorney who frequently speaks on issues related to the plaintiffs trial practice. If you are interested in submitting an article to law.com, please click here for our submission guidelines.

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