February 1, 2013 6:11 AM

Tort Reform Threatens To Deny Victim Compensation

Emergency Room.jpgJanuary 27, 2013--San Antonio, Texas--A woman arrived at a hospital emergency room with severe leg pain in 2010 and told the staff about her history of blood clot problems. However, they sent her home without treatment. A few days later, she was readmitted and both legs were amputated above the knee due to extensive tissue damage from blood clots. Now, she claims that her suit for medical malpractice is being blocked by Texas tort reform laws.

Texas Passes Tort Reform

In 2003, Texas passed laws that set a cap at $250,000 for non-economic damages in malpractice cases. The law also set a standard that required plaintiffs to prove that a healthcare professional had been "willfully or wantonly negligent" in order to collect damages for emergency care. Plaintiffs are now required to find a physician who works in the same hospital and is willing serve as an expert witness in support of a lawsuit. If a plaintiff cannot provide expert testimony within 120 days of filing a case, the plaintiff must pay the defendants' legal fees.

Plaintiffs May Suffer Due To New Law

In this case, the plaintiff has struggled for two years to find a lawyer willing to represent her because several attorneys feared her case did not meet the standards for negligence in Texas. One lawyer finally accepted the case, only to find himself unable to meet the standard for negligence. The plaintiff now owes thousands of dollars in attorney's fees for the defendant's legal representation. She and her husband may lose their home due to the payment of these bills.

Tort Reform: A Controversial Issue

Tort reform is a controversial issue that pits two groups' rights against each other: the rights of plaintiffs to collect damages in cases in which they suffer injury and the rights of defendants to avoid frivolous or unmerited lawsuits.

There is no doubt that there have been frivolous medical malpractice lawsuits filed in some instances. Because healthcare professionals and hospitals are forced to defend themselves against these lawsuits they have become a source of worry to many who fear that the increased costs of medical malpractice insurance may drive some doctors out of business, creating more strain on an already over-taxed healthcare system.

However, by denying plaintiffs the right to recover damages without meeting nearly impossible standards of proof, strict tort reform threatens to violate the rights of injured victims. It may be desirable to limit frivolous suits, but it may be unconstitutional to prevent genuinely injured victims from filing claims or punishing them by forcing them to pay exorbitant attorney's fees if they cannot find expert testimony to support their cases.

Fortunately, West Virginia has not embraced the strictest types of tort reform at this point. A West Virginia medical malpractice lawyer can assist you in recovering damages if you have been injured by a healthcare professional's negligence.

Source: The New York Times, "Despite Counsel, Victim Is Hindered By Tort Laws," Rebecca Aaronson, Jan. 24, 2013.

Chris Heavens is a medical malpractice lawyer in Charleston, West Virginia, who represents those who have been injured by doctors, hospitals, and other healthcare professionals.

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