Medical-malpractice defense lawyer Erin Lunceford is used to people assuming that the ten-year-old omnibus tort reform law known as HB 4 destroyed her practice — even those who should know better.
Three years ago, her husband introduced her to Texas Lt. Gov. David Dewhurst at a political event and mentioned that she defended doctors and hospitals from medical-malpractice cases for a living. “And [Dewhurst] said: ‘Didn’t we get rid of that?’ ” she recalls of her conversation with the man who presided over the bill’s passage in 2003 during his first year in office.
“And I said: ‘No sir. I’m quite busy,’ ” says Lunceford, a shareholder in Houston’s Sprott Rigby Newsom Robbins & Lunceford, who notes that she still settles multimillion-dollar med-mal cases.
“People thought we got rid of all of the cases. And I still get that comment from other lawyers.”
Life under HB 4, she says, isn’t always what it seems.
No doubt, the law put numerous pre-trial restrictions on a plaintiff’s ability to file such lawsuits and famously limited their noneconomic damages to $250,000. But that statute changed not only the fights lawyers have in such cases, but also the names of the lawyers who are willing to file those cases she says.
“It’s a very poorly-written law, I have to say,” notes Lunceford. “Even more so, the fact that we’re still fighting over what constitutes a health care liability is ridiculous.”
Texas courts have struggled to address whether everything from a faulty hospital bed to an alleged sexual assault of a patient by a doctor are health-care liability claims covered by the law.
“We should know what a health-care liability is by now,” she says.
While Lunceford still defends clients against the some of the same plaintiff lawyers she’s known over 25 years of defending med-mal cases, others have either abandoned the practice or scaled it down because of the high cost of litigation coupled with the lowered potential for recovery, she says.
But some of the old faces are being replaced by younger ones, she says.
One of those lawyers is Matt Tynan, an Austin solo who has been licensed to practice law in Texas for just over two years and has known nothing other than life under HB 4. The son of an orthopedic surgeon and a hospital marketing director, Tynan files medical-malpractice cases he believes in — which makes for awkward Thanksgiving Day dinner conversation, he says.
So far he’s handled four med-mal cases and recovered money in each one of those cases. And there’s one common theme in every case he’s handled, Tynan says.
“I have not had one malpractice client that has not been to at least one other attorney and been turned down,” he says.
Med-mal plaintiff work is not a volume practice, Tynan says.
“The gravity of pursuing a medical-malpractice case requires real dedication to what you’re practicing and the ability to support [the case] with documentation,” says Tynan of the difficult cause of action.
That includes the time-consuming and costly tasks mandated by HB 4 which include: finding medical experts willing to file reports documenting liability; filing those reports with 120 days of filing a complaint; and defending those reports from defense challenges, he says.
Tynan has joint ventured cases with other lawyers and receives referrals from other plaintiff attorney friends — some of whom tell him: “You’re willing to look at these cases,” Tynan says. “Maybe it’s a part of the hazing process.”
Tynan currently has two med-mal cases pending in Texas trial courts.
“I’m fortunate I only have two,” says Tynan, who supplements the cost of litigation those cases with premises liability and car wreck cases. “But I feel with two and being a solo practitioner, I don’t know I’d want to have a third one for the year.”
Veteran med-mal plaintiff attorney Paula Sweeney, of counsel in the Dallas office of Slack & Davis, says she no longer has the luxury of devoting her practice exclusively to med-mal cases because of H.B. 4 restrictions — she now also works on aviation, pharmaceutical and medical device product liability cases.
She often has no one to refer med-mal cases she can’t handle — especially if the claim is complicated, Sweeney says.
“I typically do not refer the hardest of the hard cases to young lawyers who don’t have a track record,” she says. “I can’t. If I’m making a referral I have a fiduciary responsibility. And I say often: ‘You know, there’s no one I can refer you to.’ “
Tommy Fibich, a partner in Houston’s Fibich, Hampton, Leebron, Briggs & Josephson, says his firm only accepts med-mal cases if the potential economic damages are substantial enough.
“The law has not stopped people from coming to see you. We turn down probably 10 cases a month that we would have taken had the law not changed,” Fibich says.
And the law has forced Fibich to take another part of his practice out of state — cases alleging that pharmaceutical companies failed to warn consumers about their products. The HB 4 tort reforms also created a rebuttable presumption that defendants are not liable in such cases.
“If you live in Texas you can’t recover in Texas because of a failure to warn. But the same person in Arkansas, Louisiana, Oklahoma and New Mexico can. That is a huge, huge change,” Fibich says, noting that the Lone Star State was once the launching pad for big-time pharmaceutical litigation filed by Texas plaintiff lawyers.
“The Texas lawyers are still doing the same thing, we’re just moving to the venues and to areas that are more hospitable,” says Fibich, who says his out-of-state pharmaceutical practice is thriving. “It’s almost hilarious. We all stay at the same hotels and run into each other.”