By James Girards.

Few people who are not engaged with fighting insurance companies daily understand the extent to which consumers are abused by the insurance industry - even in the most meritorious cases. The worst offenders are the medical malpractice insurance companies and their lobby. One of the most insidious tactics used by the insurance companies is something they literally wrote into Texas law back in 2003, as part of so called "tort reform."  When I say "literally wrote into Texas law" I mean exactly that.  Back in 2003 the malpractice reform bill was actually written by the insurance companies and handed to their favored legislators whose campaigns they financed, and the bill was passed. I saw it with my own eyes with the whole "owner's box" fiasco - which is a topic for another day. The issue for discussion today is that the insurance companies wrote into the law that when a patient was injured or killed and a lawsuit resulted the patient or family had a certain number of days to file a report written by a qualified expert stating in detail how the lawsuit was meritorious. That sounded reasonable despite the fact that it gave the insurance company a playbook to defend the case that many advocates said was not fair. Nevertheless, that provision created a cottage industry on the insurance company side of these lawsuits challenging the expert reports and even resulted in a line of cases that describe when an actual lengthy detailed report is not actually a "report" at all. Besides being costly, the system is insane. In recent years, the new insurance tactic has been to challenge every report even when it is so detailed and written by an expert so qualified that to challenge the report leaves one looking like a complete fool. Even worse, the insurance industry decided that a "report" is actually "no report" until an appellate court or the Texas Supreme Court says it is a "report" - and they even got some courts to agree. Now understand that while they appeal the reports, the discovery process of the lawsuit is at a standstill for a couple years - unless you can convince the trial court to let the lawsuit process move forward during the appeal. Sadly, this is rare. So, the insurance companies go to the appellate court and tell the appellate court that the trial judge doesn't really understand what a "report" is and then appellate court decides.  Then, if the appellate court says the trial judge really does know what a report is then they ask the Texas Supreme Court to take a look at it.  The Texas Supreme Court can look at the case or not at its option. Assuming the "report" is actually a "report" then the parties get to go back to the trial court and finally start the lawsuit. The end result of this is that years go by needlessly, and the appellate court system gets clogged up with every single medical malpractice case filed in the state while court after court is asked to decide if a "report" is a "report."  The courts have offered no downside to the insurance companies' wasting everyone's time and money in this - despite the fact that memories are fading, documents are being lost, and witnesses or even parties are dying before they ever get justice.

And, that brings us to the most recent expert report case to date, which is a great decision but which also unintentionally heralds what is wrong with the current medical liability system.

In the Washington case [disclaimer: the case is handled by this firm] a young man named Donell was injured needlessly because doctors failed to secure his airway and breathe for him when he lost consciousness.  He suffered a severe brain damage injury as a result. The firm retained two expert witnesses to assist with the case: one is a triple-board certified physician and one of the smartest men you'll ever meet, and the other a highly qualified hospital administration expert. The expert reports were extensive and straight forward and explained very well what the doctors did wrong and how that caused the patient's brain damage. The trial judge agreed. So, the insurance company decided to appeal anyway. You can read the pertinent documents and the court's opinion by clicking here.

Now, the thing is with patients who are severely brain damaged, the quality of medical care is essential to giving them a comfortable life. Without the money to fund decent medical care many of these patients will suffer horrible complications and die. So, with Donell time was of the essence in getting him justice and the compensation needed to provide good medical care. But, the insurance company didn't care.  The cynic might say they delayed hoping Donell would die because it would save them a lot of money.  Sadly, it is cheaper to kill a patient than it is to injure him severly. So, while the months passed getting through this needless insurance driven exercise Donell suffered complications and died.

The case was filed on July 13, 2012. Donell died December 3, 2013.

On May 8, 2014, the Waco Court of Appeals, not surprisingly, ruled that the "reports" are actually "reports" and has sent the case back to the trial judge so that we can finally start the lawsuit. The insurance company will, predictably, ask the court to reconsider and then try to get the Texas Supreme Court to review it.

Perhaps someday soon, the courts will stop allowing the insurance companies to clog up the court system for years on every medical malpractice case just because they can - or because they don't recognize a "report" when they see one. A simple fix would be to allow the trial judge to make the final decision when he thinks the report is in fact a "report."

For more information about this case or any serious injury issue, please contact The Girards Law Firm at 214-346-9529


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