Supporters of Texas malpractice damages cap are taking it to court

In an unusual legal twist, the most avid defenders of the Texas cap on damages to victims of medical malpractice — not its critics — are urging the state’s highest court to decide whether the law complies with the state constitution.

If the court hears the case, the ruling could limit future challenges in state courts. Questions have been raised 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 effort on behalf of the Texas Hospital Association and the Texas Medical Association.

But critics of the cap say that making a direct appeal to the Supreme Court with this case violates Texas rules, and they predict that the court will not hear the case. Critics also say that the tactic is intended to cut off a future case that would make a stronger challenge.

“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.

The debate pits two sides with starkly different takes on the effects of the cap.

To the medical groups, the $250,000 cap on “noneconomic” or compensatory damages for pain and suffering has helped high-risk patients because doctors are now willing to accept complex cases. Proponents say the cap has also made it easier to recruit new physicians — Texas has almost 300 more licensed doctors than it did a year ago. What’s more, medical liability rates have dropped by 26.6 percent overall since 2003, when the cap became law, according to the Texas Department of Insurance.

“The cap works and is working great,” Hull said.

Critics say the cap dealt a crushing blow to patients’ rights because many of those who suffered life-threatening injuries effectively have no legal recourse. That’s because of the economics of the lawsuits.

The law does not cap actual damages, such as loss of income or medical expenses.

“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 noneconomic damages. With the awards capped, patients cannot recover enough to pay for the cost of such lawsuits.

The costs associated with medical malpractice suits are staggering, said Charles M. Silver, a professor at the School of Law at the University of Texas at Austin, who is collecting statewide data from plaintiffs’ attorneys on the outcomes of medical malpractice cases.

To get ready to file a case, plaintiffs’ attorneys estimate that they spend an initial $15,000 to $20,000, Silver said. In addition, a typical case requires a minimum of $100,000 to conduct discovery, identify experts and prepare for trial. Such cases are three times more likely to go to trial than other suits.

“Once essentially you net out the [attorneys’] expenses and fees, there’s essentially nothing left for the claimants,” Silver said. “So only the biggest cases have a chance of getting attorneys to represent claimants.”

One case in point: Vicki Rohall, a Granbury single mom. After a hysterectomy, 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 errors.

Rohall has an attorney, Darrell Keith, but he hasn’t filed suit because of the cap, she said.

Hurst plaintiffs’ attorney Chuck Noteboom said his law office was contacted about more than 600 cases alleging negligence.

He could have pursued 200 of those, he said, but his office only took one case, which ensured high economic damages for an executive with a high salary.

The direct appeal

Hull’s direct appeal to the Texas Supreme Court unfolded in a roundabout way, thanks to the Legislature.

It began April 6, 2005, when Adrian Cerny of Corpus Christi sued Dr. John McKeever, his orthopedic surgeon, after an arthroscopic knee surgery. The Nueces County suit says Cerny spent a year or more with pain, swelling and drainage from his left knee. He sought treatment at McKeever’s office but each time was evaluated by a physician’s assistant who repeatedly assured him that everything was normal and that “there was no infection,” court documents show.

Ultimately, he was diagnosed with a “septic left knee” and given large doses of antibiotics. Cerny said he got poor aftercare, which caused him to lose cartilage in the knee. Cerny’s suit also attacked the cap, saying it denied him constitutional rights such as due process and a jury trial.

The case was eventually settled, but details are confidential, said an office assistant for Cerny’s attorney, Jon Brooks of Corpus Christi. Cerny could not be reached for comment.

That didn’t end the case. Under a “unique” provision in Texas law, Hull filed a separate suit on behalf of McKeever in Travis County to address the constitutional issues. The district court declared the cap constitutional. But it did not issue an injunction to keep the cap in place, which is what Hull and the industry groups had hoped. So they appealed directly to the state Supreme Court, as the law allows, according to supporters of the cap.

“The reason this provision was put into legislation was to allow more prompt resolution of constitutional questions,” said Charles Bailey, senior vice president and general counsel for the Texas Hospital Association.

It’s not typical for the state Supreme Court to receive such requests for a direct appeal, court spokesman Osler McCarthy said. “The rules for bringing a direct appeal are stringent because the Supreme Court frowns on bypassing the courts of appeals,” McCarthy said.

“Those rules probably eliminate many cases that might be appealed directly if they could be, but even if a case meets the requirements, that’s no guarantee the court will grant the direct appeal.”

Plaintiffs’ attorneys and other critics of the move say that, in essence, it’s a request for the court to issue an advisory opinion about a court record in a case that is not fully developed.

“It strikes me as exceedingly odd that someone can go to a court and ask that a statute which obviously is currently on the books be declared currently constitutional,” said Robert S. Peck, president of the Center for Constitutional Litigation in Washington, D.C.

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