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Despite their daughter’s tragic death, Rev. Calvin Harris and his wife Cealo count themselves among the fortunate. They are plaintiffs who have found an attorney willing to file a medical malpractice claim against two East Texas doctors, despite the curbs placed on their suit by the tort reforms embodied in H.B. 4, passed during the 2003 session of the Texas Legislature. The legislation dramatically changed the litigation landscape for class actions, products liability and medical malpractice cases. Turned away by a Longview attorney, the Harris’ almost gave up their search for representation. He had told them that the $250,000 cap on non-economic damages — pain and suffering — imposed by H.B. 4 (Sec. 74.301 of the Texas Civil Practice & Remedies Code) made their suit economically unfeasible. With multiple expert witnesses who could generate $100,000 in expenses and a 40 percent contingent fee, filing suit for what already was a hard sell to a jury wasn’t worth the risk. “It was pretty discouraging,” Calvin Harris recalls. “I can understand when malpractice cases have no merit, but this was devastating to me and my family.” Their loss might be intangible under the new law, but for them it was fresh, an open wound in need of closure. On Nov. 23, 2002, their youngest daughter Yvette had been released from an East Texas Medical Center emergency room, after complaining of abdominal pain and nausea. Her parents say that doctors diagnosed her with “pelvic inflammatory disease,” gave her a prescription for pain and sent her home. Within 36 hours, she was dead. The autopsy report said the cause of death was “sepsis” — a super-infection that resulted from “acute ischemic bowel necrosis.” In their wrongful-death petition, her parents allege that doctors negligently “failed to diagnose an intestinal obstruction.” This obstruction allegedly destroyed her small bowel and caused an infection to spread through her body, killing her. Continuing their search, the Harris’ contacted Bill Liebbe, the principal in Tyler, Texas’ Law Office of Bill Liebbe. He also told them about the caps of H.B. 4 and advised them that economic damages were uncapped but that would make little difference in their case. At 26, Yvette was single, childless and self-supporting. She had no pecuniary loss to speak of, and her parents received no economic support from their child. Julie Bright, an associate with the Tyler firm of Flowers Davis, represents one of the two emergency room doctors who treated Yvette. Bright denies that either was negligent. She also maintains that H.B. 4 (Sec. 74.153) raises the bar in emergency room cases, changing the standard of proof from simple negligence to gross negligence (“willful and wanton”). “The plaintiff will have a much tougher burden,” she says. Liebbe disagrees, interpreting the gross negligence standard to apply only to those providing emergency care who are acting as Good Samaritans with no anticipation of remuneration. He realizes he may have a fight on his hands. Nevertheless, he took the case, suing both doctors in Houston County, Texas. “I might get my butt whipped, but what was I going to tell these people?” Liebbe says. “That the value the Texas Legislature places on your daughter’s life — on any child’s life — is $250,000. Somebody had to represent these people.” Liebbe echoes the familiar outcry from the plaintiffs bar: H.B. 4 has slammed the courthouse doors shut on those who can least afford it — children, stay-at-home moms and the elderly. “Only those people who have an impressive earnings history and a significant earnings future have a case that is viable under H.B. 4,” says Dallas plaintiffs lawyer Jim Girards, founder of The Girards Law Firm. “My office has only taken two new med-mal cases since H.B. 4 became effective [Sept. 1, 2003],” says Paula Sweeney, a partner in Dallas’ Howie & Sweeney and past president of the Texas Trial Lawyers Association (TTLA). “Before the change in the law, we would have taken in 30 to 40 cases over the same time period.” Tort reform has not only made medical malpractice cases less economically viable, but also it has set up procedural roadblocks — a higher standard of proof, a discovery moratorium, governmental immunity for some doctors, a restrictive statute of repose, among others — that make them legally untenable as well. Small wonder some plaintiffs lawyers are changing specialties or becoming licensed in other jurisdictions. Or that med-mal defense firms are not replacing lawyers lost through attrition, and may be laying some off. For tort reformers such as med-mal defense attorney Mike Hull, a partner in Austin, Texas’ Hull Henricks & MacRae, the absence of new case filings simply validates that the system was rife with frivolous suits. “Before H.B. 4, 85 percent of all med-mal claims were being closed with no indemnity payment,” says Hull, who helped draft the med-mal legislation. “So if lawyers are being more selective and that number is dropping, that’s a good thing.” Besides, argues Hull, the decline in cases should only be temporary as lawyers adjust to a new reality. Even in the aftermath of H.B. 4, advocates on both sides of the issue refuse to give ground. Tort reformers contend that soaring medical liability premiums were driven by the losses suffered by insurance companies in their defense of malpractice claims, frivolous or otherwise; a cap on non-economic damages limits an insurance company’s risk and will ultimately reduce premiums. Plaintiffs lawyers contend the 85 percent figure cited by tort reformers is overblown; if any one factor drove up premiums, it was the imprudent investment decisions of insurance companies. But tort reform is working, says Hull. Although one insurer has actually raised its rates, doctors insured with Texas Mutual Liability Trust, the state’s largest medical liability carrier, have seen a 17 percent reduction in their premiums, he says. The number of doctors in high-risk specialties is increasing, and doctors are again finding Texas an attractive place to practice medicine. And with the savings that hospitals are reaping from their own premium decreases, contends Hull, new hospital wings are being built. More doctors and facilities translate to better health care. And why shouldn’t their rates go down, Sweeney argues. “If you were an insurance company, wouldn’t you write coverage for people who are virtually immune from suit?” No matter the argument, tort reform has arrived, and lawyers are playing by new rules of engagement — rules that are decidedly more onerous for plaintiffs lawyers. But if bad doctors are no longer being held accountable for their negligence and wronged patients are being denied access to the justice system, is reducing liability premiums by providing a less risky environment for insurance companies worth the price? RAISING THE BAR If the rules of engagement have changed, tort reformers believe it is long overdue. They argue that Texas in the late ’80s had become a plaintiffs paradise, a magnet for lawyers across the nation to come shopping for justice. Punitive damages were unlimited; experts pedaling “junk science” made jury verdicts unfounded, and joint and several liability made them unjust. Comes then-Gov. George W. Bush, and much of this was to change. The 1995 legislative session saw the first significant tort reform in Texas: tightened venue rules discouraged forum-shopping and a cap on punitive damages limited them to two times economic damages in most cases. A conservative Texas Supreme Court made it more difficult to qualify expert witnesses and seemed more willing to dismiss cases — many of them personal-injury cases — based on “no evidence” findings. But these changes pale by comparison to the reforms implemented by H.B. 4, which received constitutional imprimatur from Texas voters with the narrow passage of Proposition 12 on Sept. 13, 2003. Republicans, fresh from a stunning 2002 victory that gave them a monopoly over every branch of state government, turned their attention to tort reform. “In previous sessions, there was always a balanced debate,” says David Bragg, a partner in Austin’s Bragg, Chumlea, McQuality who lobbied against the reforms on behalf of the American Association of Retired Persons. “It was a train, and you could choose to stand on the tracks as some of us did or step aside.” “Plaintiffs lawyers claim we got everything we wanted, but we only got half of what worked in California, which was our model for reform,” Hull says. “We got less of a cap than we wanted and nothing on contingency fees.” Plaintiffs lawyers counter that even prior to H.B. 4, the rules of engagement in med-mal cases were never a cakewalk for them. Med-mal cases often lack jury appeal: There seems an innate bias against believing that doctors lie or make mistakes. For the longest time, experts had to be imported from other states since Texas doctors would rarely testify against one another. “We already don’t file frivolous suits,” Sweeney says. “You have to be right on the medicine. You have to be right on the law. The hardest thing is proving that the patient, notwithstanding the malpractice, wouldn’t have gotten sick or died because of his underlying illness.” H.B. 4 made an uneven playing field even steeper, say plaintiffs lawyers, who point to the discovery moratorium imposed by 74.351. Prior law required a plaintiff to provide an expert report and curriculum vitae to the defense within 180 days of filing suit, or the plaintiff’s claim would be dismissed with prejudice. Although its purpose was to avoid frivolous suits, there was no limitation on discovery prior to filing the report. “The gist of the report has an expert detailing that he knows what the standard of care is, how that standard was breached and how that breach caused the injury,” Sweeney says. “A cottage industry has developed around attacking the adequacy of these reports, which only increases the cost and burden on the plaintiff.” Aside from tightening the filing deadline to 120 days, H.B. 4 mandated that, until the report is filed, all discovery is stayed except for written discovery and two oral depositions. Plaintiffs lawyers were outraged by the 2004 decision of Beaumont’s 9th Court of Appeals in In Re: Barry R. Miller, which held that oral depositions of a defendant-doctor are not among the two depositions allowed; they can only be taken after the report is filed. “How can you get an expert to say a doctor was negligent without ever hearing the doctor’s side of the case?” Sweeney asks. “Many experts are just not willing to do that.” Many plaintiffs lawyers, however, don’t even file their cases until they have their expert report in hand, using medical records and pre-litigation discovery tools to educate their experts. But medical records are often incomplete, and not every case lends itself to this tactic. What’s more, if the trial court finds the report adequate and refuses to dismiss the case, H.B. 4 permits the defense to file an interlocutory appeal, “which only adds more time and money to the plaintiff,” Sweeney says. Prior law offered limited governmental immunity to public hospitals such as Parkland Hospital in Dallas, capping their exposure at $100,000. “H.B. 4 extends that immunity to health-care professionals who work in these hospitals,” Sweeney says. “But the statute [Sec. 101.106 of the Civil Practice & Remedies Code] is written so that it makes it virtually impossible to maintain a suit against the doctor,” Sweeney says. These changes, along with a host of others, have created a special class of rules favoring health-care professionals, whose definition was expanded to include chiropractors and optometrists — none of whom were reportedly threatening to quit their practices because of high malpractice premiums. Cobbled together with the cap on non-economic damages, these reforms help accomplish what plaintiffs lawyers claim is the unstated intent of H.B. 4: to make medical malpractice claims not only unfeasible but also unwinnable. TRIAL LAWYER REPRISE “We have been screening hundreds of med-mal cases and have not filed any yet,” says Girards, uttering the mantra of so many plaintiffs lawyers. “I just evaluated a case for a nurse who was rendered sterile by the malpractice of her obstetrician. I felt lousy having to tell her there is no economic loss associated with the inability to have a child.” No matter the number of doctors or the number of plaintiffs (74.001(6) defines all persons seeking damages as a result of the death or injury of a single person as a “single claimant “), the cap on non-economic damages remains fixed at $250,000. A claimant can allege negligence against up to two health-care institutions (hospitals) and each institution’s liability for non-economic damages will be capped at $250,000. “It’s a rare plaintiff that can sue two hospitals and reach the aggregate cap of $750,000,” Bill Liebbe says. Some plaintiffs lawyers are trying to circumvent non-economic damage limits by recasting them as economic. Instead of focusing on the pain and suffering of a deceased housewife and her survivors, these lawyers are calculating the economic benefit she provided the household. “How many hours a week did she cook, clean, shop, mentor her children?” Liebbe explains. “If the only value of a human being is how much they can produce monetarily, we need to ask, ‘What is the replacement cost of this worker known as a wife?’” No doubt insurance defense attorneys will fight this reconfiguration. Insurance companies are counting on the caps to give predictability to the system. “Capping non-economic damages takes away the risk of the runaway jury,” says Dan Marley, a mediator and former insurance adjuster for Medical Protective Co., the state’s second largest provider of malpractice insurance. “You need evidence to support economic damages. But pain and suffering is wildly unpredictable and if insurance companies can predict their losses, they will know how much premiums to charge.” This predictability will bring stability to the insurance market, which will increase competition and drive down premiums — or so goes the argument of tort reformers. But then why did Medical Protective Co. ask Texas Insurance Commissioner Jose O. Montemayor for a 39 percent increase in its rates, effective June 1, 2004? In its filing, the company stated that “[n]on-economic damages are a small percentage of total losses paid. Capping non-economic damages will show loss savings of 1.0 %.” Plaintiffs lawyers lament that the certainty of caps has emboldened insurance companies to set most cases for trial. “When you know what your worst day is going to look like, why settle for it?” Leibbe asks. “It makes more sense for reasonable people to come to the table early and negotiate,” Marley says. “But some insurance companies are more inclined to try the lawsuits since there is no catastrophic downside.” Assuming, of course, there are suits to try and lawyers to try them. “Before the law came into effect, there was a rush to the courthouse. Plaintiffs lawyers were emptying out their cabinets,” says Stan Thiebaud, a partner in Stinnett Thiebaud & Remington who practices med-mal defense. “Following that, there was a tremendous drop-off in cases to zero. It stayed that way through last summer. Only now are we seeing a very small increase in filings. What we can’t tell is where the plateau is.” Is the absence of new business cause for concern? “We are holding the line on new hires and not replacing those who have left,” Theibaud says. “It would be fair to say that many defense firms are in a wait-and-see mode in terms of hiring. Some may even be laying people off.” Some plaintiffs lawyers have removed their shingles or become licensed in more tort-friendly jurisdictions. “Clearly, H.B. 4 was a pivotal point for me because of the way I ran my shop,” says Elizabeth Kilbride, formerly a partner in the now-defunct Kilbride, Cullen & Morrison of Houston, who now is a mediator. “I had a low-volume, high-dollar-investment practice and my client population was the type who were going to bear the brunt of H.B. 4 — children, housewives and the elderly.” Just as no one actually knows if the malpractice caseload will significantly rebound, no one knows if insurance premiums will significantly plummet. “We don’t know if tort reform actually works,” Thiebaud says. “You might say the jury is still out.” President Bush has listed medical liability reform as a top priority for his second term, exporting to the rest of the country what he began in Texas. According to a recent CNN story, Bush addressed the issue during a White House-sponsored economic conference in mid-December 2004. “The costs of frivolous lawsuits in some cases make it prohibitively expensive for a small business to stay in business or for a doctor to practice medicine.” Although he wanted “those who have been hurt … to have their day in court,” he re-urged his longstanding proposal to impose caps on non-economic damages. Rev. Calvin Harris wishes he could talk to Bush about the death of his daughter. He would try to make him understand why he filed his suit, why he feels caps are unfair, why he “won’t rest in peace until justice is served.” “Our motive wasn’t monetary damages,” he says. “We just don’t want this to happen to another poor family. She was my baby girl. She was a woman of religion. How do you put a monetary cap on that?”

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