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Tort Laws Hinder Amputee; New York Medical Malpractice Attorney Discusses Interesting Issue

Cases

In 2003 Texas lawmakers implemented a massive tort reform package which capped the noneconomic damages a plaintiff can be awarded for medical malpractice at $250,000. In addition a “willful and wanton” negligence standard was set for emergency care. This standard is interpreted as intentionally harming the patient. The reforms also require that a plaintiff find an expert witness who is a practicing or teaching physician in the same specialty as the defendant to demonstrate evidence of negligence prior to trial. In addition if a plaintiff fails to produce adequate expert reports within 120 days of filing they are then liable for the defendants’ legal fees.

A patient who had her legs amputated above the knees nearly three years ago claims she is a victim of not just medical malpractice but also of Texas’ tort reform laws. Connie Spears, first went to a Texas emergency room in 2010 because she was suffering from severe leg pain. When Spears arrived at the emergency room she told the medical staff of her history of blood clots. However doctors sent her home. Spears was taken by ambulance to another hospital days later. The doctors there found a sever blood clot and extensive tissue damage. Her life was on the line the doctors amputated both her legs above the knee.

Due to the malpractice laws Spears was obstructed in her ability to find a malpractice lawyer. Spears struggled for two years to obtain legal representation because many lawyers said that they were concerned that her case did not meet the new negligence standards. The lawyer who finally took her case believed that it may be strong enough to challenge the state’s tort reform laws. Her lawyer planned to attempt to challenge the laws’ constitutionality.

Unfortunately Spears case fell apart under the expert witness rules. The first attempt at an expert witness report failed to identify the proper defendants. After this the lawyer was unable to find another expert witness with enough time to satisfy Texas’ requirement. The case was dismissed and a judge was forced to order her to pay for the defendants’ legal bills.

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