More On Ebola Malpractice . . . And Tort Reform.

I blogged yesterday about who can, and can’t, sue a Hospital for Ebola malpractice in New York. By “Ebola malpractice” I mean a hospital’s failure to timely diagnose and treat the disease, and to take precautions to avoid its spreading.

I determined that in New York the patient and the sickened family of the patient probably could successfully sue.

But in Texas – where an Ebola malpractice lawsuit should be brought — Ebola malpractice suits will almost certainly fail. That’s because Texas is a “tort reform” State. Back in 2003 the Lone Star State passed a Republican-led tort deform reform law that just about annihilated medical malpractice claims. Among other things, the law requires emergency room patients to prove not just negligence but “willful and wanton” negligence on the part of the hospital staff. That standard is tough to prove, but even if you can prove it, you face another tort-reform barrier: Damages caps. In Texas, your pain and suffering damages are “capped” at $250,000 for the hospital and $250,000 for the doctor.

The worse effect of the Texas deforms reforms is not how they affect the victims of medical malpractice. It’s how they affect the behavior of hospitals and doctors who commit medical malpractice. It’s how they put the rest of us at risk for future medical malpractice. That’s because for hospitals, as for all businesses, the bottom line is what counts.

The bean counters in a Texas hospital are bound to think along these lines:

Bean counter 1: “Gee, our staff really screwed up in misdiagnosing and releasing that Ebola patient. We put the whole community at risk”!

Bean counter 2: “Maybe we should give our entire staff some Ebola training to avoid a repeat”?

Bean counter 1: “Hell no, that costs money. And if we screw up again, it’s another free pass here in the good’ol State of Texas. Thank God we’re not in New York!”

Tort deformers reformers (mostly insurance companies and their minions) complain that, without tort deform reform, doctors are forced to practice expensive and useless “defensive medicine”. But isn’t a little “defensive medicine” better than “you-can’t-sue-me-so-who-cares” medicine? Food for thought . . .

Keep safe!

Mike Bersani
Email me at: I’d love to hear from you!

Michael G. Bersani, Esq. Central NY Medical Malpractice Lawyers
Michaels Bersani Kalabanka


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