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Pending Texas Case Could Change Malpractice Procedures

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A pending case in the Texas Supreme Court may reverse a previous reform to medical malpractice suits in the state. This reform places restrictions on pre-trial discovery and postpones discovery until after the defendant gets an expert report confirming negligence.

This reform was originally made in order to quell excessive litigation. Many trial lawyers, however, are opposed to such reform because getting an expert opinion without full discovery can be very difficult.

The entire article from Legal Newsline detailing the pending case about this reform follows:

Lawyers, doctors await Tex. SC med-mal ruling: report

by Rob Luke

AUSTIN — The Texas Supreme Court is currently mulling a case that could remove a key reform to the Lone Star State’s medical-practice lawsuits, writes a prominent legal journal.

Texas Lawyer (TL) reported today that the case (In Re: Jack Jorden, M.D.) will determine whether restrictions on pre-trial discovery in med-mal cases, introduced in 2003, trump a state provision allowing such discovery. An appellate court in Tyler ruled it did not, but similar courts in Houston and Eastland disagreed.

The 2003 reform, which postpones the discovery phase of a med-mal case until after the defendant gets an expert report concluding negligence, was part of the state’s 2003 tort-reform bill called H.B. 4. The bill introduced a variety of reforms because of what it called the state’s “environment of excessive litigation.”

The point of such changes is to cut costs in the system by weeding out weaker cases through limited discovery. Trial lawyers strongly opposed the move, claiming they could not gain an expert opinion without sufficient discovery, TL noted.

Early signs are that the med-mal reforms at issue in the case are beginning to show positive results, the TL piece pointed out, quoting briefs from the Texas Medical Association (TMA) among others. Access to care is improving while non-meritorious claims are decreasing, TMA’s attorney pointed out.

But that could be in jeopardy if the Supreme Court follows the Tyler appellate decision and allows both to co-exist. “If you allow the process that the Tyler Court of Appeals allowed, virtually all of the safeguards on discovery that were imposed by H.B. 4 could be bypassed,” R. Brent Cooper, an attorney in the case, told TL.

The state’s trial lawyers, not surprisingly, have a different take. Texas Trial Lawyers Association President Jay Harvey told TL the case was about whether “the courts will continue to treat the health-care industry as a protected class beyond the legal system.”

For more information on this subject, please refer to our section on Medical Malpractice and Negligent Care.