Charles Silver, Texas Perspectives: It’s time politicians pay price for predictions wide of the mark

University of Texas at Austin Law Professor Charles Silver editorializes on the lack of recourse when predictions by politicians fall short. In his piece for The Waco Tribune-Herald, Silver reflects on the poor decision making by Governor Perry when Tort Reform failed to perform as promised:

Texas Gov. Rick Perry also paid no price after making false predictions about tort reform. He persuaded many voters to support him by saying that if we curtailed medical malpractice lawsuits, doctors would move to Texas in droves. Then, after Texas adopted tort reform in 2003, growth in the state’s supply of direct patient-care physicians actually slowed. But Perry suffered no consequences for having given away Texans’ legal rights without getting anything from doctors in return.

The current administration is voicing support for enforcing tort reform nationwide. We hope Representative Tom Price, President Trump’s pick for Secretary of Health and Human Services, looks to Perry’s example and reflects on the harm done to patients’ rights without the promised results.

Texas Lawyer: How is Hitting a Cow in the Road Med Mal?

        A recent article from Texas Lawyer outlines a case involving a plaintiff hitting loose cattle belonging to a retired doctor.

        The doctor is arguing that when a plaintiff hit several [of his] loose cows while traveling on a high plains road, it was a health care liability claim.  Part of the medical malpractice changes enacted by the Texas Legislature in 2003 used by the doctor to make such an argument is the definition of “health care liability claim” under Civil Practice and Remedies Code §74.001(a)(13):

Health care liability claim” means a cause of action against a health care provider or physician for treatment, lack of treatment, or other claimed departure from accepted standards of medical care, or health care, or safety or professional or administrative services directly related to health care, which proximately results in injury to or death of a claimant, whether the claimant’s claim or cause of action sounds in tort or contract.

      Excerpting just the bolded language you get:

Health care liability claim” means a cause of action against a physician for other claimed departure from safety which proximately results in injury to a claimant.

        Voila, there you have it, in hitting the doctor’s cows, the claimant must be asserting a claim against a physician for a departure from safety; i.e., letting the cows loose on the road, causing the claimant injury.

        So, under Civil Practice and Remedies Code Chapter 74, the claimant has to file an expert report setting forth the standard of care, departure from standard of care, and how that departure from the standard of care caused the claimant’s injury. Let’s see how that works.  Under Civil Practice and Remedies Code §74.401(a):

        In a suit involving a health care liability claim against a physician for injury to or death of a patient, a person may qualify as an expert witness on the issue of whether the physician departed from the accepted standards of medical care only if the person is a physician who:…

        So, the claimant needed to get a physician to write a report about the accepted standards of medical care for maintaining cattle safely.  Of course, if the claimant had done that, the doctor would claim the report was insufficient because the physician who wrote the report for the claimant is not qualified on how to maintain cattle safely. Catch-22.

        Remember, these are adults with higher degrees playing this game.