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Stepping on the Little Guy: Dallas worker loses all four limbs, is awarded $17.7 million; well, almost, but not quite.

By Steve Lombardi

There is a joke that everything in Texas is big. I’ve only been to the airport in Texas but looking at the tort deform they enacted to protect their big medical mistakes I’d have to agree that when they make a mistake they make it big. In 2003 the State of Texas decided that everything in Texas should be big except jury awards. In that year with oil prices soaring and campaign dollars flowing off the petroleum vines like fresh crushed grapes a constitutional amendment was passed that empowered the Texas legislature to cap the amount of pain and suffering for which a person could be compensated. The legislature acted and did just that; the legislature put a cap on the amount a person, mostly Texans, could receive in non-economic damages. Let me tell you about how that law plays out with a guy by the name of David Fitzgerald’s. I’ve never met him, wouldn’t know David Fitzgerald if I met him on the street. By his name I’m assuming there is some Irish blood running through his veins. But today he’s got a problem.

In today’s case David Fitzgerald, 53 and a former maintenance worker will live the rest of his life without arms, legs, hands, fingers, feet or toes and at 53 his life expectancy of more than 26 years will provide him with $26.34 per day for what he suffers with minute by minute, day by day, week by week, month by month, year by year and decade by decade; until that one final minute ticks off his clock and he’s finally dead and gone. Dallas-Star Telegram. David sued a hospital over his acquiring an infection that resulted in his limbs being amputated. He sued others too, settled with some and went to the jury on the rest. He won. As the title indicates he was awarded $17.7 million; and oftentimes as it the little guy finds out a big old Texas judge gets to say, “Hold on there little fellow, not so fast, the little guy isn’t supposed to win against the moneyed interests in this country.” You can just hear the brakes going on in your head. We tend to ask, “Now why would the judge do that?”

The judge is required by law to reduce it because of tort deformers having contributed enough to political war chests that the legislature decided the insurance industry needed protection so they could make hundreds of millions of dollars more than they already were. Medical malpractice insurers aren’t broke; far from it. In 2006 the net income after taxes for medical malpractice insurers reached $65,777 million. “Rapid surplus growth in recent years has left the industry with between $85 billion and $100 billion in excess capital…” Premiums have gone down 30% and there is a “stampede” of insurance companies running into and across the great plains of Texas. So why give them big old rich fat cat insurance executives tort deform protections? Well because they thought they might be going broke. And what about the little guy? Besides the shaft what did they give him?

Well, the legislature gave the little guy all the pain and suffering he could endure just not compensation. Pain and suffering in Texas is still big, as is how much a person in Texas is allowed to suffer. The pockets of the insurance companies are as deep as ever, but the oil of sympathy ain’t a flowing from the Court house steps.

In this YouTube video clip titled Texas Tort Reforms Good for Texas (Well not all Texans) you’ll see the face of the Texas tort reform movement.

http://www.youtube.com/watch?v=U3wOc5IS7bc

The answer to the little guys challenge in Texas is pretty simple. In a post tomorrow I’ll explore one option, Texas style. For today here is the Constitutional amendment, which really doesn’t limit damages, it expands the power of the legislature to put caps on damages. You are the judge; and ask yourself, has the legislature gone too far?

The Texas Constitution Article 3 - LEGISLATIVE DEPARTMENT Section 66 - LIMITATION ON LIABILITY FOR NONECONOMIC DAMAGES

(a) In this section “economic damages” means compensatory damages for any pecuniary loss or damage. The term does not include any loss or damage, however characterized, for past, present, and future physical pain and suffering, mental anguish and suffering, loss of consortium, loss of companionship and society, disfigurement, or physical impairment.

(b) Notwithstanding any other provision of this constitution, the legislature by statute may determine the limit of liability for all damages and losses, however characterized, other than economic damages, of a provider of medical or health care with respect to treatment, lack of treatment, or other claimed departure from an accepted standard of medical or health care or safety, however characterized, that is or is claimed to be a cause of, or that contributes or is claimed to contribute to, disease, injury, or death of a person. This subsection applies without regard to whether the claim or cause of action arises under or is derived from common law, a statute, or other law, including any claim or cause of action based or sounding in tort, contract, or any other theory or any combination of theories of liability. The claim or cause of action includes a medical or health care liability claim as defined by the legislature.

(c) Notwithstanding any other provision of this constitution, after January 1, 2005, the legislature by statute may determine the limit of liability for all damages and losses, however characterized, other than economic damages, in a claim or cause of action not covered by Subsection (b) of this section. This subsection applies without regard to whether the claim or cause of action arises under or is derived from common law, a statute, or other law, including any claim or cause of action based or sounding in tort, contract, or any other theory or any combination of theories of liability.

(d) Except as provided by Subsection (c) of this section, this section applies to a law enacted by the 78th Legislature, Regular Session, 2003, and to all subsequent regular or special sessions of the legislature.

(e) A legislative exercise of authority under Subsection (c) of this section requires a three-fifths vote of all the members elected to each house and must include language citing this section. (Added Sept. 13, 2003.)

Originally posted at InjuryBoard by Steve Lombardi

Full post as published by Des Moines Personal Injury Lawyer on February 23, 2009 (boomark / email).