Texas Tort Reform Message – Go west young man; go east or north, but go.
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Yesterday we discussed David Fitzgerald, a real person, not some fictional character in someone’s imagination but breathing, thinking and probably a pretty angry man. David needed medial care. He didn’t ask for much just proper medical care. He checked into a hospital and while in there developed an infection. While the doctors debated his fate and the death clocked ticked God was not smiling on him that day and he ended up with having his limbs amputated. Yes you read that right he has no arms, hands, fingers, legs, feet or toes due to infection he acquired in the hospital. Like anyone facing the enormous costs of living that way and caring for himself (along with this acquired infection not being what he checked into the hospital to get) he sued. And guess what? He won. $17.7 million was awarded to him.
In Texas they do things big and so the big guys having the legislature in their pocket have big protections; tort reform measures that will take away most of his damages for pain and suffering along with other damages categorized as “non-economic”. Now take a minute and think about that. Some things we do in the law aren’t very easy to understand. And that’s because the law is a complicated process. Let me try and put this into perspective. Proving your case in court is tough. And there are limits to what you can prove. David’s lawyers had no easy task to prove this case. I know because I’ve looked at this type of a case and they are horrendously difficult to prove. In my opinion proving liability in this type of case is not just expensive but extremely technical. And I don’t like technical medical malpractice cases because juries aren’t equipped to appreciate the little nuances this type of testimony provides. Jury’s tend to think that if it’s that complicated then the doctor’s would have had to be Moses to figure it out; and they can easily find for the defense. Also, doctors and hospitals control the testimony on what future medical costs poor David Fitzgerald will incur. Knowing he was suing them it isn’t likely they did him any favors and erred on the side of caution in his favor. Of course the nature of his injuries lend themselves to using a dose of good Yankee common sense and we can pretty much figure he’s going to need a boat load of money just to survive. And if he doesn’t have it then he’ll end up on our dime, drawing the measly thousand or so per month from Social Security. There shouldn’t be anyone reading this that thinks this guy’s life is going to be anything short of managing daily misery. So when David goes to court and his lawyers prove up $17.7 million in damages it’s pretty certain he’s going to need all of it just to survive with any semblance of dignity. No one should think this was some run-away jury giving this guy a cattle truck full of money for nothing. As sympathetic as we may feel for David it’s my guess the judge is going to apply the law and take away that which he has rightfully been awarded.
The message is clear: Just say "No" to medical treatment in Texas.
Isn’t it ironic that the law will allow the jury to find in his favor, award a large sum and then the Courts say too bad, how sad and with the stroke of a pen take it away? There is certain meanness to making a person prove it, allowing a jury to hold it out in front of him and then taking it away. This is a good example of justice having nothing to do with fairness or righteousness. In this case it’s just one big Texas dose of meanness.
So when the judge applies this tort reform measure and takes away all but $250,000 of pain and suffering, poor David Fitzgerald is going to end up with about half of what he was awarded. In David’s case, knowing the current thinking in the judiciary there is little hope the Courts in Texas will rule in his favor; but what about the future David Fitzgerald’s? How many more David Fitzgerald’s will have their proven court case taken away from them?
The message is clear: Just say "No" to medical treatment in Texas.
People in Texas should learn something from this case; and it’s this. In Texas when you receive medical care the system doesn’t care about you when that medical care does more harm than good. When medical care causes the patient harm, the message is loud and clear; it’s just too damn bad. Everyone else goes about their business. The doctors and hospital blue suits still go on vacation, still drive down the local Mercedes dealership and buy the new S Class sedan and still get to hold a bent-stem glass sipping martinis on Friday and Saturday night. They still get to hold their kids, their wives and the iron shaft of a golf club. But what about the future David Fitzgerald’s who due to faulty medical care no longer have that ability. Is it just tough luck, go home and suffer quietly so we don’t have to listen to your moaning or see your daily suffering? Is it just tough luck but leave us alone? It certainly seems that way in Texas. Or is it?
What recourse do patients in Texas have to protect themselves? In Texas your solution is really pretty simple - Leave. That’s right leave. If you need surgery or hospitalization and you live in Texas don’t have your care in Texas. If your spouse, children, mother, father, or other relatives – the ones you love – need medical care leave. Go to another state where they do take care of their own problems. Go to another state where the system doesn’t rob you of a verdict you earned and are rightfully owed. Leave the state of Texas for all surgeries. Let the doctors treat each other but the rest of you Texas citizens just check into hospitals in some other state. That way if something goes wrong you can keep what you earned. What I’m telling you to do is the idea of a Texan and an Oklahoman.
The message is clear: Just say "No" to medical treatment in Texas.
Remember GeeDubya and Toby Keith giving the Dixie Chicks a boot in the ass, as Toby was fond of saying? Well in this instance that is probably good advice. As GeeDubya said this freedom thing is a two-way street. Do or say what you want but that doesn’t mean anyone has to buy your music. If you don’t like what tort reform does to you then suffer the trivial inconvenience of checking into a hospital in another state, protect your own future and just say “NO Thanks!” And do it with a big Texas smile. You see the tort reformers may have won this round and are in fact making billions of dollars from the suffering of little guys like David Fitzgerald, but the little guy isn’t without a choice in health care. I’m sure there are plenty of hospitals around the country that will gladly accept your insurance card and who aren’t asking you to pay for their mistakes.
Does anyone else find it ironic that Toby Keith and his family were awarded $2.8 million by an Okalahoma jury for the wrongful death of his 67 year old father and this man without limbs is having his reduced? Perhaps it’s not ironic; maybe it’s a lesson to Texans. Get on MapQuest and figure out where from your house the nearest hospitals are in Oklahoma.
David Fitzgerald, I’m sorry to hear about you being robbed of justice. I’ll pray there is a better day for you. As for the Texas legislature, you’ve gone way too far. How many of the Texas legislators have looked into the eyes of people like David Fitzgerald, touched their skin, listened to their personal stories and shared the agonizing minutes of their lives? None of you I’ll bet. You should really stop by his room and see him. You should talk to him and look into his eyes. Are you legislators too busy today to visit with David? Maybe if instead of lunches with lobbyists legislators visited with people like David we’d have fewer tort reformers deforming the laws to protect multi-million dollar bonuses and more laws protecting real people; like David.
The message is clear: Just say "No" to medical treatment in Texas.