Texas Tort Reform: Reducing Frivolity or Inhibiting Justice?

By Alexandra Aaron

Alexandra Aaron is a sophomore at the University of Wisconsin-Madison studying History and Political Science.

On September 26th Thomas Eric Duncan arrived at Texas Health Presbyterian Hospital in Dallas having just returned from Liberia with symptoms consistent with Ebola. Despite having this information, the hospital sent him home. [1] Duncan passed away three weeks later, and anyone he came in contact with is at serious risk of contracting the disease.

Failure to correctly diagnose a patient can be the basis for claims of medical malpractice, and in this case the hospital could be liable to anyone infected by Duncan after his release. But, unfortunately for Duncan and those infected, Texas has in recent years become the country’s leader in tort reform, or, what those opposed to it call, “tort deform.”

Intended to combat what corporate lobbyists and legislators have dubbed “frivolous lawsuits,” a 2003 Texas law made it nearly impossible to sue for medical malpractice and capped non-economic damages at $250,000 and $100, 00 at certain hospitals for those who do manage to get their day in court.

Through neglecting to quarantine Duncan and his family immediately, Texas Health Presbyterian as well as the physicians and staff that treated him may be responsible for harm to anyone who developed Ebola after coming in contact with Duncan. However, because the medical care he received was in Texas, it is unlikely that his medical providers will be found liable, and, even if they are, any damages awarded would be subject to remittitur.

Damages in civil litigation can cost a company millions, which is why states like Texas cap them. So how do juries come up with these multimillion-dollar verdicts in the first place?

Juries base compensatory amounts on economic, physical, and emotional damages. For example, if they find that a hospital and its medical staff’s negligence caused permanent brain damage in a young boy, they would calculate the cost of the lifelong medical care his disabilities would necessitate, and assess the ensuing pain and suffering. In the case of a 6 year-old Missouri boy, this amounted to $4.82 million.

Juries are instructed that punitive damages should be determined by the conduct of the wrongdoer and reflect an amount they believe would adequately “punish” the defendants to deter them from acting negligently in the future. Punitive damages are often high, and a jury may consider a company’s net worth in such an award. For example, if a jury finds that McDonald’s is liable for 3rd degree burns caused by their hot coffee, than they might award the victim two days’ worth of coffee sales revenue. For one New Mexico woman in 1994, such damages amounted to $2.7 million. 

Reducing damages from say $2 million to $250,000 not only negates the intent of jury trials to compensate victims for harms caused by another’s wrongdoing, but can also be crushing to any victim who depends on compensation for their injuries. If these amounts have been rationally calculated` to compensate victims, then why do we reform? Who do these caps really serve? 

Proponents of tort reform argue that these lawsuits are responsible for rising healthcare costs and insurance premiums and discourage doctors from practicing medicine. [2] Conservative politicians and lobbying organizations have praised Texas’s reforms, pointing to the increase in doctors and decrease in malpractice premiums. These measures have succeeded in protecting doctors, hospitals, and insurance companies, but what about everyone these measures were expected to protect? Healthcare costs in Texas have skyrocketed above the national average and the state now ranks next to last in healthcare quality.[3][4] Hospitals protect doctors who continue to botch surgeries, debilitating and even killing patients because their victims are unable to hold them accountable. Minimal repercussions allow these doctors to continue practicing and fail to prevent further negligence.

This law was at first a departure from the Texas Constitution; state members had to vote to amend it in order to pass the new regulations. However, the law was represented in a way that led Texans to believe they were protecting the state from frivolous lawsuits. In actuality, the regulations protect the guilty and prevent their victims from seeking justice.

The courts should be responsible for determining whether or not a lawsuit has merit, not the corporate interests lobbying the legislatures who profit from convincing the public that every claim is frivolous. Many believe this to be true, until the day something bad happens to them; hopefully, their misfortunes do not occur in Texas.


[1] Family of Ebola Patient Thomas Eric Duncan Distraught Over Death in Dallas, The Washington Post, http://www.washingtonpost.com/national/health-science/thomas-eric-duncans-family-in-mourning-after-ebola-death-in-dallas/2014/10/08/80dfb880-4f36-11e4-babe-e91da079cb8a_story.html. Last accessed October 7, 2014.

[2] Ten Years of Tort Reform in Texas: A Review, The Heritage Foundation, http://www.heritage.org/research/reports/2013/07/ten-years-of-tort-reform-in-texas-a-review. Last accessed October 8, 2014.
[3] How States Rank on Healthcare, Web MD, http://www.webmd.com/news/20070613/how-states-rank-on-health-care. Last accessed October 8, 2014.
[4] Average Hospital Cost By State, Governing, http://www.governing.com/gov-data/health/average-medical-hospital-costs-by-state-map.html. Last accessed October 9, 2014. Photo credit: Flickr user Megan