Looking for loopholes in malpractice caps

The SE Texas Record Sep. 25, 2010, 4:00am

The sign said "No Swimming," but you were just wading (up to your neck).

Your car was in a "No Parking" zone, but you weren't really parked because the engine was running and your emergency lights were flashing.

You didn't really "break" into that stranger's house because the upstairs window you climbed through wasn't locked.

There's the letter of the law and the spirit of the law. The spirit of the law leaves no loopholes, but the letter of the law is riddled with them and any sophist worth his/her salt can come up with ways to circumvent seemingly straightforward strictures.

When the Texas legislature passed medical malpractice reform and set caps on non-monetary damages like pain and suffering, their obvious intent was to discourage frivolous claims against doctors and hospitals and make the Lone Star state a friendlier place for medical practitioners.

Plaintiffs attorneys who'd profited handsomely at the expense of doctors, hospitals, and the quality of medical care in Texas suddenly hit a dead end on the road to riches.
It was a definite downside for the legal anglers and operators.

But it wasn't long before some trial lawyers were trying to turn that dead end into a temporary detour.

The 2003 law set a $250,000 cap for pain and suffering resulting from "medical malpractice," but that didn't preclude suing doctors and hospitals for nonmedical negligence, it was decided.

A patient named Irving Marks, for instance, could make a "premises liability" claim against St. Luke's Episcopal Hospital, alleging that he'd injured himself after tripping on his hospital bed's broken footboard, and the medical malpractice cap wouldn't apply. He could sue for unlimited damages because the bed wasn't a component of his medical care.

The Texas Supreme Court initially ruled in Marks's favor, but recently reversed itself, concluding that injuries associated with a hospital bed are indeed covered by medical malpractice caps.

Thus the spirit of the law was upheld while the quest for profitable loopholes continues.

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