Speaking of "Tort reform"....

In my last post, I mentioned the amazing ability of defense lawyers to run up astronomical bills for things that really shouldn't take all that much work. I'm sure I've also mentioned that "tort reform" often drives up litigation costs. Baylor v. Biggs is a great example.

Several years ago, in an actual incident that inspired an episode of Scrubs, doctors transplanted rabid organs into unsuspecting patients, who subsequently died. The survivors of a kidney recipient sued, claiming that if the hospital had told them that the organs came from an IV drug abuse with other risk factors, their dead loved one would likely have waited for a more suitable donor. The hospital no one tests for rabies, so they didn't do anything wrong.

But before this suit was filed, the Texas legislature had passed a "tort reform" bill that required plaintiffs filing medical malpractice cases to serve the defendant with an expert report stating how the defendant breached the standard of care and how that breach caused the injury. The report has to be served before the defendant is required to respond to discovery or do pretty much anything else in the case, and if the plaintiff fails to file an adequate report, the defendant gets his attorneys fees (which shouldn't amount to much, because all this happens before the defendant's lawyers have to do much of anything).

In Baylor v. Biggs, the plaintiff filed her expert report, and the trial court found the report adequate. The defendants appealed, and the Dallas Court of Appeals ruled that the reports were deficient and sent the case back to the trial court so the trial judge could determine whether the plaintiff should get a chance to cure the deficiency. If they're right and the plaintiff doesn't have a claim, they'd have nothing to fear from giving the plaintiff a chance to cure the deficiency. Because if they're right, it would have been incurable, and the case would have been over years ago.

But the defendants were not satisfied with this victory, and filed a petition for review in the Supreme Court of Texas, claiming that the plaintiff should not be allowed the opportunity to cure the deficiency and demonstrate that she had a colorable claim. The law that the legislature passed said that the court could give the plaintiff one chance to cure a deficient report, but the defendants argued that shouldn't apply when the court of appeals rather than the trial court is the one that rules the report is deficient. This was too much even for the notoriously pro-defendant, pro-doctor Supreme Court of Texas, which ultimately denied review (after deciding the issue in the plaintiff's favor another case).

So the case went back to the trial court which, for no apparent reason, decided not to give the plaintiff an opportunity to correct the deficiency, and awarded the defendants almost a quarter of a million dollars in attorneys fees. And this for a procedure that was supposed to cut down on litigation costs and cut off the litigation before the defendant incurs any significant legal fees.

The plaintiff appealed this time, and the Dallas Court of Appeals reversed again, saying that, while the trial curt had discretion not to grant the opportunity to cure, it at least had to have a reason. And now it seems the defendants have taken it to the Supreme Court again. Who knows how much more they'll be claiming for this.

As an appellate lawyer, I know for a fact that the defendants could have made their challenge to the plaintiffs expert report and taken it up on appeal for a tenth of what the district court awarded in attorneys fees. I could have. Easily.

In my experience, the remainder could only be attributable to exorbitant billing rates, padding the file with unnecessary work, and the completely unnecessary trip to the Supreme Court, the only purpose of which was to try to deny the plaintiff an opportunity to demonstrate that she had a valid claim and win on a technicality. And that's what "tort reform" is really about.