Class action challenges Texas cap on medical malpractice damages

Michelle Massey, East Texas Bureau Feb. 28, 2008, 5:00am

MARSHALL -- Seeking to nullify the Medical Malpractice and Tort Reform Act of 2003, a class action suit filed in the Marshall court of the Eastern District of Texas argues that the state's limits on non-economic damages are unconstitutional.

Texans overhauled the Texas civil justice system by adopting the comprehensive tort reform bill (House Bill 4)regarding health care liability claims in 2003, which includes limits on non-economic damages. Economic losses are not capped and include factors like medical costs and lost income.

The suit filed in Marshall on Feb. 25 states that proposed class members will include all Texas individuals injured because of negligent medical treatment since the enactment of the reform measures and future injured individuals. As defendants, the suit names health care providers who seek to enforce the damage cap and more than 600 Texas civil trial court judges who are required to enforce the damage limits.

According to the complaint, the plaintiffs and the potential class they represent are seeking a declaration that the non-economic damage cap violates constitutional provisions including violation of Seventh Amendment, the Petition Clause of the First amendment, the Takings Clause of the Fifth Amendment and the Due Process Clause, the Equal Protection Clause and the rights guaranteed by the Privileges or Immunities of the Fourteenth Amendment.

The suit argues the cap has a direct impact on a plaintiffs' potential jury award, the likely extent of recovery in the case and the decision on whether the cost of proof relating to a capped recovery will be worth the effort of pursuing.

The lawsuit criticizes the cap for frustrating these plaintiffs and those in similar circumstances in the filing of meritorious lawsuits and will render any settlement or damages award inadequate.

In addition, the class action alleges the non-economic cap provides the defendants with state authority, while subverting the states' interest in deterring medical negligence.

Class counsel includes The Center for Constitutional Litigation and local counsel includes attorney Jack B. Baldwin from the Marshall law firm Baldwin and Baldwin; attorneys Jim M. Perdue, Jim M. Perdue Jr. and Priscilla Walters of the Houston Perdue Law Firm; attorney Les Weisbrod of the Dallas law firm Miller, Curtis and Weisbrod; attorneys Jack E. McGehee and H.C. Change of the Houston law firm McGehee Wachsman; McAllen attorney Servando H. Gonzales Jr.; attorney Hartley Hampton of the Houston law firm Fibich, Hampton, and Leebron; and attorneys Paula Sweeney and Kelly Lovitt Reddell of the Dallas law firm Howie and Sweeney.

The suit names 11 cases currently pending that the noneconomic damages cap would likely effect.

  • Emma Watson, individually and on behalf of her daughter, is suing Marshall Regional Medical Center, Dr. Charles Gaskin, and Dr. Gregory Hortman. She alleges that the doctors failed to identify and timely treat acute fetal distress, thus allowing her daughter to sustain permanent brain damage.

  • Wife of Dallas Cowboy football player Ron Springs is suing Dr. Joyce Abraham, Texas Anesthesia Group, Dr. David Godat and Dr. Godat's practice. Springs alleges her husband's surgical anesthesia was mal-administered causing severe anoxic brain injury.

  • Dianne Bass is suing Dr. Randolph W. Rountree and his employer West Texas Medical Associates. She alleges the OB/GYN sexually assaulted her while she was under sedation. Rountree, after losing his medical license, has been convicted of felony sexual assault charges and is currently serving time in a Texas state prison.

  • Anthony Rollins is suing Dr. Mark D'Andrew, Gulf Coast Cancer and Diagnostic Center and Gulf Coast Oncology Association. He alleges that the doctor negligently administered an external beam of radiation causing burns and permanent damage to his anal canal, rectum, bladder and perineum.

  • Individually and on behalf of her husband, Sharon Ashkar is suing Dr. David Carrier, Dr. Hani A. Haykal, Houston Radiology Association and The Methodist Hospital. She alleges that the doctors negligently performed an epidural steroid injection causing her husband to suffer a massive cerebellar hemorrhage.

  • Steve Okrei, D.D.S and his wife are suing Dr. Hani A. Haykal. The couple alleges the doctor negligently injected an imaging contrast solution into his spinal cord instead of the subarachnoid space causing neurological damage.

  • Individually and on behalf of their daughter, parents Yuritzi Pena and Felipe Flores, Jr. are suing Dr. Luis Morales, Dr. She Ling Wong and Valley Baptist Medical Center-Brownsville. The family alleges the doctors and hospitals failed to heed their warnings or appropriately treat an obstruction in their daughter's abdominal, causing their daughter the loss of intestinal function.

  • Anita and Leo Garza are suing Dr. Laila Hassan, Dr. Hitesh Patel, Dr. Vivian Hartig and Memorial Southeast Emergency Physicians. They allege the doctors failed to perform a MRI on Mrs. Garza allowing a progression in a spinal abscess that has resulted in paralysis.

  • Lilian and Marcelino Guerra, individually and on behalf of their daughter, are suing Dr. Clement Ugorji, Emergency Health Services Associates and corporate alter egos, Dr. Leonard M. Riggs and Dr. Dighton Packard. The Guerras allege that the doctors and hospitals were negligent in allowing their daughter's birth to remain unattended, failing to properly intubate the baby and failing to monitor or respond to the baby's low glucose levels causing the baby to sustain brain damage.

  • Juan Limon and his wife are suing Dr. Rodolfo Guerrero, Mid Valley Gastroenterology, Dr. S. Murthy Badiga and Dr. Badiga's practice. The couple is alleging medical negligence with regard to three procedures to clear food obstruction from his esophagus.

  • Dwight Smith, individually and as guardian of his wife, is suing Dr. Lawrence Gilman, Dr. Robert Alleyn, Rosalba Puente, R.N., Midgdalia Soilz, R.N. and Doctor's Hospital at Renaissance. Smith alleges the healthcare providers failed to notice or correct an airway obstruction after surgery causing his wife brain damage.

    U.S. District Judge T. John Ward has been assigned to the litigation.

    Case No.: 2:08cv00081

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