A federal judge recently ruled that Texas's Medical Malpractice cap is constitutional, according to Business Insurance. This ruling is only the most recent example of federal and state courts working with the current Texas legislature to strip injured persons of their right to hold wrongdoers accountable.
Texas’ Cap on Damages
In 2003, Texas capped non-economic damages as part of the Medical Malpractice and Tort Reform Act of 2003. Since its inception, the Tort Reform Act has served one purpose--to free insurance companies, physicians and hospitals from their responsibility to pay for legitimate injuries caused by physician and hospital negligence.
It was argued by the insurance industry that the cap was necessary to attract physicians to Texas and bring down costs of insurance, though there was no evidence of a lack of physicians in Texas and no link to insurance rates and jury verdicts. The cap limits non-economic damage awards in medical malpractice cases against doctors to $250,000.
There is also a $250,000 cap favoring hospitals. This means that regardless what the jury allows an injured person as compensation for non-economic damages, when jurors go home the judge takes away their verdict and reduces it to the pre-determined maximum amount. A child who is brain injured for the rest of his or her life? $250,000 is the maximum for non-economic damages recoverable from one or more physicians.
So what are non-economic damages? Basically any damage other than medical care or lost wages are considered non-economic damages, and the damage cap applies.
Damages awards can include compensation for non-economic injuries such as:
- Pain and suffering
- Mental anguish
- Emotional distress
- Loss of consortium and companionship
Why is the Cap Unconstitutional?
The right to trial by jury is guaranteed by the 7th Amendment of the United States Constitution. This country sought independence in large part to protect the sanctity of the right to trial by jury--a right deemed fundamental in order to protect the common man from abusive of power by the king.
In order to take away the jury's right to reach a verdict on damages, Texas sought a Constitutional Amendment. The manner in which the amendment was obtained and the overreaching nature of the amendment is argued to violate our citizens' 7th amendment right to a trial by jury. Not so, says the federal judge, and dangerous doctors and hospitals may still cause harm without accountability.
So the cap, supposedly intended to drive down medical costs and malpractice premiums and bring more doctors to Texas, is in Texas to stay. Medical costs have in fact increased since 2003, and it is unclear whether any drop in malpractice premiums has attracted doctors. According to The Washington Post, it is certain that injured patients are receiving less compensation for injuries caused by medical negligence.
Patients who have been injured due to a medical professional’s negligence should obtain competent legal representation by an experienced personal injury attorney who can help seek the compensation available to them for their losses.
Citizens are encouraged to become aware of the systematic attack on one of this nation's most fundamental rights: the right to a trial by a jury of his or her peers.