The Texas Senate this week passed a major tort reform bill aimed at stopping so-called “nuclear verdicts” said to be caused by some personal injury lawyers colluding with medical providers to inflate medical bills.
The vote broke along party lines 20-11 and came after a lengthy floor debate that at times grew heated. Discussion topics ranged from the landmark 2003 limits on medical malpractice cases, to a lawyer who features his private jet in TV ads, to the highly publicized 1994 case in which an elderly woman won $2.7 million in punitive damages after suffering third-degree burns from scalding McDonald’s coffee.
Supporters said the bill would discourage over-diagnosing and over-treatment of injuries while preserving rights for those who suffer severe injuries due to negligence. Critics said the bill would further erode Texan’s ability to access the courthouse where juries can assess their economic and noneconomic damages.
The author of Senate Bill 30, Sen. Charles Schwertner, said the bill is a necessary response to an upward trend of jury awards in cases of individuals injured in big-rig crashes and by defective products. Since 2016, he said there have been 104 awards over $10 million and 20 over $100 million.
“There is an abuse of the system currently when it comes to personal injury cases that allows for a system that has manifest itself in the awarding of very large verdicts, and the frequency of those cases also increasing,” said Schwertner, a Republican from Georgetown.
He said the bill would limit the admissibility of artificially incurred medical bills by capping medical damages at up to 300 percent of current Medicare fees, adjusted for inflation. It would standardize trial protocols and jury instructions to allow for uniform application of the law by defining the noneconomic damages of pain and suffering and mental anguish. The bill also would allow evidence about referrals and disclosure of agreements between lawyers and medical providers.
“Senate Bill 30 will restore transparency and fairness in civil trials, stabilize the currently volatile legal environment and return reasonable insurability to Texas families and businesses,” said Schwertner, a physician.
The bill is supported by trucking and business interests, including Texans for Lawsuit Reform. The Lone Star Economic Alliance, of which TLR is a founding member, said in a statement that the bill will prevent abusive lawsuit practices and bring uniformity to Texas courtrooms.
It is opposed by the Texas Trial Lawyers Association and individuals who have suffered severe injuries, including survivors of sexual assault and child abuse.
Sen. Roland Gutierrez, a San Antonio Democrat whose law firm specializes in immigration law, said the bill does nothing to address insurance company greed.
“The most disturbing part is you tarnish the profession that I’m in,” he said. “You make an assumption that all doctors and lawyers are a bunch of greedy bastards, and that’s not the case.”
Gutierrez urged senators to look at the facts behind Schwertner’s statistics on the number of high-dollar verdicts.
“My response to that [number] is, ‘Is that it?’ Have you seen the damages and the negligence that people have to go through? And I will submit to you … that most people don’t have access to the courthouse in a real way,” Gutierrez said.
Senators voted down an amendment from Sen. Royce West, a Dallas Democrat and lawyer, that would have substituted “the usual and customary rate” for “300 percent of the Medicare fee schedule.”
“By doing that, we allow the fact finders — those jurors that we have on our jury, those citizens from our community — to make a determination as to whether or not those fees are reasonable. It puts us in compliance with the Texas Constitution,” West said.
Schwertner said West’s amendment would allow whatever rates are set by any provider as the basis for damages.
During a late March hearing on the bill, Dallas personal injury attorney Charla Aldous said it would devastate survivors of sexual abuse whose injuries or impairment might not be observable but who could have long-term expenses for their mental health recovery. Individuals also presented harrowing testimony about abuse they had suffered and efforts to hold their abusers liable.
Schwertner amended the bill to allow damages for physical pain and suffering in cases of sexual assault or abuse that is corroborated by medical evidence or a prior consistent statement.
Senate Bill 30 now goes to the Texas House.