Ironically, this appeared in yesterday's Austin American-Statesman re: the effect of the damages cap legislation in Texas. The AAS tends to overplay human interest stories (and this is a good one) in order to promote its ultra-leftist editoral slants, but this does demonstrate 1) just how expensive these cases are to try for a plaintiff's attorney, and 2) how economic damages alone do not always provide a sufficient remuneration/deterrent effect in the tort system. Not that it justifies unethical, slimy behavior, but remember that plaintiffs' attorneys take these cases on a contingency basis, fund all of the discovery, and stand to lose a bundle if the recovery is inadequate.
Many lawyers avoiding malpractice cases
One mom is told that the new limit on damages makes a trial in her son's hospital death too costly
By Claire Osborn
AMERICAN-STATESMAN STAFF
Monday, June 14, 2004
Yvonne Harrison said her son had a fever when doctors urged him to check into Seton Medical Center in 2002. Nothing else was wrong, although he had already received two liver transplants and had to be carefully monitored, his mother said.
Three days later, 18-year-old Gerard Anthony August died in the hospital of pneumonia.
After months of grieving, Harrison, a registered clinical pathologist and a paralegal, tried to hire a lawyer to file suit against Seton because she said staff didn't follow the right medical procedures. She said she contacted 92 lawyers, and all of them turned her down.
The reason, she said, was a state law that took effect in September that limits damages in medical malpractice lawsuits to $250,000 for pain and suffering. Lawyers told her the new cap made it too expensive to try her case, Harrison said.
Approved in the 2003 legislative session, the law was designed to limit the number of lawsuits against doctors, help lower malpractice insurance and in the end make health care more accessible.
Opinion is divided over how it is working. Defense attorneys say it is too early to tell, and doctors -- who lobbied heavily for the law -- are optimistic but have yet to see much relief in their malpractice premiums. One major insurance company has lowered rates by 12 percent, but others haven't followed.
"I believe that most doctors are feeling pretty good about what has happened," said Dr. Norman Chenven, the founder of Austin Regional Clinic. Fewer lawsuits means fewer doctors leaving the profession, he said.
Meanwhile, several Austin lawyers say the number of medical malpractice suits they have filed since the new law has declined significantly because they cannot afford to handle them.
"The number of people who have called me where I've not been able to help them has grown, and the stories I'm hearing are heartbreaking," Alice London said.
Statistics showing the number of medical malpractice suits filed in Travis County and statewide since the law took effect were not available.
But in Harris County, which includes Houston, only 40 medical malpractice lawsuits were filed between January and March, compared with an average of 120 filed during the same period each of the previous three years, according to the Texas Medical Association.
Started with a fever
Harrison said her son's illness began in 1993 when a doctor diagnosed the 10-year-old Pflugerville boy with autoimmune liver disease. August had his first liver transplant in 2000. His body rejected it. After his second in 2001, he was put on a strict regimen of drugs to fight another rejection, Harrison said.
Her son refused to let his medical problems sideline him, Harrison said. He was a disc jockey at parties and remained active in St. Stephens Baptist Church in Austin. He had been home-schooled, then took a telemarketing job with MCI and was so successful that he was able to buy himself a car.
August wanted to become an electrical engineer and in 1998 won a University of Texas math and science competition, his mother said.
On June 1, 2002, August walked into the Seton Medical Center on West 38th Street complaining of a fever.
The transplant service in San Antonio that had handled his case had recommended that he get a few lab tests done, Harrison said. Seton staff wasn't familiar with the way lab test results should look for a kidney transplant patient and mistakenly demanded that August admit himself to the hospital June 5, Harrison said.
She said her son didn't want to admit himself but did at the insistence of Seton doctors.
The hospital didn't have the right kind of medicine, and August had to wait so long to get it that his body began breaking down, Harrison said. When his kidneys began to fail, the staff decided to insert a tube near his collarbone to start dialysis, according to medical records that Harrison is using in her lawsuit.
Harrison said that the placement of the tube failed the first two times and that August developed severe bleeding and swelling that crushed his trachea. The staff then had to insert a breathing tube, according to medical records.
"He was conscious, and he told me he was scared," Harrison said.
Harrison said she pleaded with hospital staff to fly her son to the transplant service at University Hospital in San Antonio or to Texas Children's Hospital in Houston because they would know how to handle his case.
Three days later, her son died of pneumonia.
After he died, Harrison said she had a nervous breakdown and moved in with her sister in Lufkin.
She eventually found lawyers who agreed to help her prepare a lawsuit, although they declined to represent her. She filed a lawsuit in Austin on June 4, representing herself against Seton Medical Center and the doctors involved in her son's care.
Seton has not yet been served with the lawsuit, and its lawyers declined to comment, according to a hospital spokeswoman.
Representing herself
The lawyers she contacted, Harrison said, explained to her that her case would be too expensive to handle.
The new law set a top limit of a little less than $1.5 million for wrongful death cases, regardless of the number of defendants. Most of that was for "economic damages" such as lost future wages. But for an 18-year-old with no spouse or children, any economic damages would be small.
That left the $250,000 maximum for pain and suffering. Not enough, the lawyers said.
Bill Whitehurst, who practices at one of the major medical malpractice law firms in Austin, said the cost of taking a medical malpractice suit to court can be up to $450,000.
"It's why this $250,000 cap is so ridiculous," Whitehurst said. "The cost of experts is very high, and you can't prove cases without experts."
Jay Harvey, president of the Capital Area Trial Lawyers Association, said it cost him $3,500 to get just a preliminary analysis by an expert in a medical malpractice suit.
Harvey said he has filed only one new medical malpractice lawsuit in the eight months since the law took effect, down from about one a month before. Whitehurst said his firm has filed fewer lawsuits since September, too.
On the other side, David Davis, a defense lawyer who represents doctors and hospitals, said he has seen a 95 percent reduction in the number of cases he is handling. He's not sure if that's a long-term trend or a natural dropoff after plaintiffs lawyers rushed to file lawsuits just before Sept. 1.
Without a lawyer, Harrison now faces the prospect of going against Seton's lawyers by herself.
Harrison "won't stand a chance" in her lawsuit without a lawyer, Whitehurst said. "The people she will be going up against are highly seasoned trial lawyers, and they will bring in their own experts who will fight her tooth and nail."
Harris said that she already has an expert who is willing to testify but that she is scared about representing herself.
"If I do something wrong or if I miss a step, it's possible the court will throw my legal petition out," she said. "It's frightening, because the people who are charged with protecting us are running scared because nobody wants to challenge that new rule."
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