Judge dismisses some claims that Texas medical malpractice caps violate plaintiffs' constitutional rights

Michelle Massey, East Texas Bureau Apr. 9, 2009, 6:27am


MARSHALL -- An East Texas judge has dismissed several claims in a class action lawsuit that the Medical Malpractice and Tort Reform Act of 2003 violates plaintiffs' constitutional rights.

On March 31, Magistrate Judge Charles Everingham of the Eastern District of Texas, who is handling pre-trial proceedings, submitted his finding that plaintiffs did not plead viable Seventh Amendment, due process or equal protection challenges to House Bill 4.

Trial court Judge T. John Ward for the Marshall Division of the Eastern District of Texas accepted Everinham's recommendation.

The class action suit filed in the Marshall court on Feb. 25, 2008, seeks to nullify the tort reform act by arguing that the state's limits on non-economic damages are unconstitutional.

Texans overhauled the state civil justice system by adopting the comprehensive tort reform bill, House Bill 4, regarding health care liability claims in 2003. The reforms include capping non-economic damages like pain and suffering and loss of consortium at $250,000. There is no cap on economic losses like medical expenses and lost income.

According to the complaint, the plaintiffs and the potential class they represent were 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.

Judge Everingham noted that the Seventh Amendment has not been incorporated by the Fourteenth Amendment to apply to state court proceedings and does not apply in the context of a state court suit.

Further, Judge Everingham stated, "federal courts routinely hold that statutory damage caps do not violate the Seventh Amendment, largely because a court does not 'reexamine' a jury's verdict or impose its own factual determination regarding what a proper award might be."

The proposed class members would include all Texas individuals injured because of negligent medical treatment since the enactment of the reform measures and future injured individuals. The named plaintiffs in the class action are also parties in pending malpractice cases in state courts.

As defendants, the original lawsuit named physicians and health care providers who seek to enforce the damage cap in underlying state court cases.

The defendants argue the plaintiffs efforts are solely an attempt to interrupt and disrupt ongoing state judicial proceedings.

The class action also named more than 600 Texas civil trial court judges as defendants in an effort to bind the judges to any decision regarding the constitutionality of the statute, but Ward dismissed the court judges the day after the case was filed.

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.

According to the suit, the damage cap frustrates a plaintiff's filing of a meritorious complaint and would render any settlement or damage 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.

The plaintiffs also argued that the damage limitations violated substantive due process because the caps limit a remedy under state common law without providing a substitute.

Judge Everingham denied the argument citing the case Lucas vs. United States in which the Court of Appeals rejected a similar argument directed toward the prior Texas damage limitations.

Also citing Lucas, the judge denied the plaintiffs' allegations of violating equal protection.

The state of Texas intervened in the case and requested to file a motion for summary judgment defending the constitutionality of HB 4, should the court decide the plaintiffs' claims were viable.

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.

Case No. 2:08cv00081

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