Texas AG defends state medical malpractice reforms
BY CHRIS RIZO

Greg Abbott (R)
AUSTIN, Texas (Legal Newsline)-The Texas attorney general has urged the state Supreme Court to leave intact medical malpractice reforms.The Texas Legislature in 2003 imposed a strict 10-year statute of repose on medical malpractice claims. The law -- House Bill 4 -- was aimed at helping to control skyrocketing medical malpractice insurance premiums, which were blamed for doctors leaving the Lone Star State at the time.In Republican Attorney General Greg Abbott's brief to the Supreme Court, state Solicitor General James Ho noted law was enacted because "the Legislature concluded that indeterminate and unpredictable liability regimes drive up the cost of health care and reduce access to physicians."The attorney general's friend-of-the-court brief also argues that Texas's 10-year statute of repose does not interfere with an individual's right to file a medical malpractice lawsuit. "The Legislature struck a fair balance between the rights of plaintiffs to obtain redress for injuries and the rights of physicians and other health care providers from having to litigate stale claims," the AG's amicus brief said. "The balance struck by the Legislature was reasonable -- and constitutional."Abbott's brief was filed in the case of Methodist Healthcare System of San Antonio v. Rankin.The case stems from a 2006 lawsuit Emmalene Rankin filed against two physicians and the Methodist Healthcare System of San Antonio 11 years after a surgical sponge was allegedly left behind in her body after her hysterectomy in 1995.The sponge was found lodged in Rankin's abdomen more than a decade after her hysterectomy at Southwest Texas Methodist Hospital in San Antonio.At trial, Rankin's lawyers said the state's statute of repose violated the Texas Constitution's Open Courts provision that provides that "all courts shall be open, and every person for an injury done to him, in his lands, goods, person or reputation, shall have remedy by due course of law." The Bexar County district court found that Rankin's lawsuit exceeded the statute of limitations, but the decision was reversed last year by the Fourth Court of Appeals, which also struck down the statute of repose under the Open Courts provision."The Legislature is certainly entitled to set a period of time within which claims must be brought, but it may not deny a plaintiff a reasonable opportunity to discover the alleged wrong and bring suit," the appeals court ruled.From Legal Newsline: Reach staff reporter Chris Rizo at chrisrizo@legalnewsline.com.

Lawyers using "runners"

Ezine Articles
November 13, 2009
Comment: Subject: Barratry

Stephanie Gibson writes:

House Bill 148 would have allowed Texas to recover significant civil damages for such harassment and illegal, unwanted solicitations by unscrupulous lawyers or their representatives. While the bill did pass, it was quietly gutted.Initially, HB 148 would have empowered clients to collect triple damages from lawyers who engage in illegal case solicitation. This civil remedy would have penalized such practices as lawyers using “runners” to covertly solicit cases or to otherwise exploit the vulnerability of hospitalized accident victims and their families. The new civil treble damage claim would also have applied to private investigators, chiropractors, doctors, and other health care workers who participated in the illegal solicitation of cases. This provision was stripped from the bill, despite all sides claiming to support the change. Also removed were civil triple damage claims penalizing solicitations involving false, fraudulent, misleading, deceptive, or unfair statements or claims, or that included coercion, duress, overreaching, harassment, intimidation, or undue influence. Brazen case solicitation has been practiced with impunity in some parts of Texas for years, particularly in South Texas. The San Antonio Express-News reported in May that the situation there has grown so severe that “warfare has broken out over barratry” in Corpus Christi. The paper reported that “lawyers are suing lawyers, seeking to overturn multimillion-dollar settlements of cases they claim were acquired improperly.”

Comment provided November 13, 2009 at 10:59 am

Jury Service Awareness Month!

Called For Jury Duty? Don’t Forget Your Tinfoil Hat
Life Is A Funny Place by Ned Hickson
Tuesday, November 10 2009 08:43 pm
There comes a time when we, as U.S. citizens, are called to step forward and — just as Americans have been doing for over 200 years — devise a lame excuse to get out of jury duty. This time-honored tradition dates back to the very first jury pool, which John Handcock was excused from after complaining of hand cramps “of the severest nature.” As it stands, I’ve been excused from jury duty twice, despite expressing my willingness to serve.
So when my latest summons came in the mail, my first instinct was to make a tinfoil hat with the words, Hello: My Name Is Quandar written across the front, which, along with my silver jump suit, can usually get me dismissed in under 30 minutes (depending on how quickly my tinfoil hat clears security). But this time something was different. Maybe because I’m older, maybe because my daughter is studying the U.S. Constitution, or maybe because we’re out of tinfoil — whatever the reason — I’ve decided to dress appropriately, show up for jury duty, and take a chance on being sequestered with 11 others to determine, by way of evidence and testimony, who is at fault when someone burns themselves with a hot pickle slice.
Admitedly, I once found myself driving down the road with an 800-degree onion ring searing my flesh. I had just left a Burger King drive-through and, after maintaining my composure long enough to exit the parking lot, pounced on my combo meal like a hyena at a gazelle feed — laughing and eating, laughing and eating.
So, when I ripped into an enormous onion ring and felt the breading fall away into my lap, I had no one but myself to blame when my appetizer became a sizzling, onion-flavored chin strap that turned my frenzied laughing to screaming on I-5. But I never once thought of calling a lawyer in an effort to seek damages against Burger King (and the onion growers of America) for supplying me the means with which to do something stupid.
I believe stupid lawsuits are the reason a lot of people aren’t willing to serve as jurists. For example, a study conducted in California found that of the 4.4 million people summoned for jury duty in Orange County last year, only nine percent actually participated in the judicial process. Of course, this doesn’t include those who became part of that process after being fingerprinted.
In all fairness, I should mention that not every potential juror would’ve qualified for duty anyway. That’s because there are strict guidelines in place for the initial phase of the jury selection process — the first of which is that you actually have to be ALIVE in order to render a verdict. In spite of these stringent guidelines, a report commissioned by the American Tort Reform Association discovered that Los Angeles County not only summoned dead people for jury duty, but also people’s pets. While this is certainly shocking, there is some good news in that none of these pets were dead.
While the study was able to determine that absolutely no pets had played a part in the final outcome of any cases, according to the bailif in one case, “It was because that little cockapoo couldn’t read the verdict.”
The only way to increase participation in the jury process is to restore the respectability of the judicial system by eliminating stupid lawsuits that waste everybody’s time. How? By requiring the people who file them to serve as jurors.
In the meantime, I’ll be on my way to court next week.
Assuming I don’t burn myself on a hot pickle.