House Judiciary Committee Recently Approved Bill Aiming to Reduce Awards in Medical Malpractice Lawsuits; Houston Personal Injury Attorney Examines Potential Changes

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George W. Wilhite, personal injury attorney of Wilhite & Lea in Houston, analyzes the ramifications of proposed national medical malpractice reform and the effects H.R. 5, if passed, will have on Houston medical malpractice victims.

If the national act becomes a law, it may even further limit the options for medical malpractice victims in Texas," claims Houston lawyer, George W. Wilhite.

With the recent passage of President Obama’s health care reform, medical malpractice reform has become the topic of national headlines. According to the Library of Congress' website, the Help Efficient, Accessible, Low-cost, Timely Healthcare Act (HEALTH Act) was approved by a vote of 18-15 in February by the House Judiciary Committee. The HEALTH Act seeks to implement national tort reform by setting limits on medical malpractice claims.

Although the national act, currently known as H.R. 5, is not intended to affect states that already have tort reform legislation in place, it may still have an impact on medical malpractice victims in Texas, in addition to all other states that do not have tort reform laws.

Texas enacted a comprehensive set of laws in 2003, codified in Chapter 74 of the Texas Civil Practice and Remedies Code, with regard to medical malpractice claims in the state. These laws impose statutory caps on the amount of damages that can be awarded to a medical malpractice victim. Texas’ laws also require several prerequisites to filing suit, including an expert report requirement and notice provisions.

According to George W. Wilhite, an experienced Houston medical malpractice attorney, “Although the national act seems more lenient than Texas laws in certain respects, these less stringent aspects of the law would not apply to Texas malpractice victims. Texas has very limiting laws regarding medical malpractice lawsuits and damages.”

Current Texas medical malpractice laws limit pain and suffering, also known as non-economic damages, to $250,000 for each claimant, no matter the number of negligent doctors or healthcare providers, and $250,000 for each medical institution per claimant, but not to exceed $500,000.

The text of H.R. 5 states the national act would cap non-economic damages at $250,000 and limit punitive damages to $250,000, or twice the economic damages, whichever is greater. The HEALTH Act does not provide for a nationally set limit on the amount of economic damages.

Other medical malpractice laws in Texas provide for a two year statute of limitations on medical malpractice claims. Additionally, Texas laws do not limit the amount an attorney may receive from contingency fees.

The national medical malpractice reform act would establish a strict statute of limitations for filing medical malpractice claims. The HEALTH Act would bar a claim if not filed within one year after the injury is discovered, or three years after the injury actually occurred, whichever is earlier. The national act would also provide for limited attorney’s contingency fees.

The national act additionally seeks to limit victims’ punitive damages against pharmaceutical companies and medical device makers and distributors. The HEALTH Act does not permit punitive or exemplary damages against these entities. Currently, victims can seek exemplary damages for medical malpractice claims in Texas against these types of companies in an amount up to the state’s statutory cap.

The potential victims in Texas that would be affected by the proposed national legislation are those who have suffered from malfunctioning medical devices and products or defective pharmaceuticals.

“If the national act becomes a law, it may even further limit the options for medical malpractice victims in Texas,” claims lawyer George W. Wilhite.

The proposed national act and Texas medical malpractice laws also conflict regarding the “Collateral Source Rule,” which is followed in Texas.

This rule does not permit evidence to be presented in a lawsuit that demonstrates the claimant’s damages were paid by another source, such as worker’s compensation or health insurance. If this evidence were presented at trial, some jurors may mistakenly believe the injured person did not suffer a significant financial loss because their insurance company paid the medical bills, and these jurors may consequently award the victim less money.

However, insurance carriers have subrogation interests in any award arising from a lawsuit involving benefits paid by the carrier. This means if the insurance carrier’s insured is injured, and the carrier pays medical expenses under its policy, the insurance carrier has the right to recover any money it already paid if the insured recovers damages under a lawsuit. The carrier then collects its subrogation from the insured’s award from the lawsuit.

The HEALTH Act would permit the introduction of collateral source benefits as evidence in a lawsuit, but would not allow for the subrogation of a collateral source provider out of a claimant’s recovery.

The general goal of national tort reform is to decrease insurance premiums for doctors, reduce health care costs, and limit frivolous lawsuits. However, limits on victims’ exemplary or punitive damages may not significantly decrease insurance premiums, and Texas’ health care costs may have actually increased since the implementation of the state’s tort reform laws.

The future for H.R. 5 will soon be determined when it is voted on in the House, where it is expected to pass. However, the bill may face opposition in the Senate. Previous versions in prior years have passed the House, but failed to become law once voted on in the Senate.

George W. Wilhite, is a personal injury lawyer in Houston with Wilhite & Lea PC, and represents victims in Southeast Texas, including Harris County, Montgomery County, Fort Bend County, Grimes County, Waller County, and Washington County.

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