AUSTIN – The 87th Texas Legislature is underway, and Texans for Lawsuit Reform has several top priorities for the 2021 session, one of which is COVID-19 liability protections for businesses that follow safety protocols.
Rather than blanket immunity, TLR believes businesses following state and federal safety protocols need assurance they will not be subject to an onslaught of lawsuits for alleged COVID-19 exposure.
“At the same time, the law must encourage businesses to actually follow safety protocols to protect employees and customers,” said Lucy Nashed, TLR’s communications director. “Texas law should provide that a business that makes a good faith effort to comply with state and federal safety protocols should not be liable for a customer or employee contracting COVID-19.”
TLR will push for a bill requiring plaintiffs in COVID-19 lawsuits to use scientifically valid evidence showing that the defendant caused the plaintiff’s illness, and to present that evidence at the outset of the lawsuit.
“If not, the case should be dismissed,” Nashed said. “Liability should arise only if the business was grossly negligent.”
The Texas Association of Manufactures, a sister organization of Texas Civil Justice League, has also designated pandemic liability protection as one of its top three priorities.
Many Texas trial lawyers have been actively trolling for COVID-19 wrongful death claims.
There are other top priorities for TLR this session, including commercial vehicle litigation – a growing concern for the group as of late.
TLR and the Texas Trucking Association, along with over 200 businesses and industry groups, have already created the Keep Texas Trucking Coalition to advocate for legislation to address abusive commercial vehicle lawsuits.
“Lawyer ads seeking clients to sue owners of trucks and commercial vehicles are ubiquitous,” Nashed said. “The lawyers who pursue these cases have figured out how to maximize their percentage fees, often leveraging inflated medical billing to drive up litigation costs.”
A decade ago, one in 17 car crashes resulted in a lawsuit. Today, it is one in 10.
According to the Texas Office of Court Administration, the number of motor vehicle lawsuits has increased steadily since fiscal year 2008, climbing 118 percent from 2008 to 2019.
However, over the same period, the number of highway fatalities and severe injuries in Texas has increased less than five percent.
“Cars are safer. Trucks are safer. Highways are safer. Yet, the number of lawsuits continues to increase,” Nashed said. “Some of these lawsuits have yielded enormous verdicts that are inconsistent with the facts. Out of fear of ‘nuclear verdicts,’ insurers feel compelled to pay on cases that have little merit.”
Settling cases with little merit creates a “litigation vortex,” Nashed says, encouraging more advertising, more lawsuits and more settlements.
“To make up for the losses, insurance companies increase premiums and deductibles for all commercial vehicle owners, without regard to claims history,” Nashed said. “Those costs are passed along to us as consumers through higher priced goods and services.
“It is unsustainable.”
For the past decade, trial lawyers have employed what’s called the “Reptile Theory” when going before jurors, asking them to envision themselves in the same situation as the plaintiff.
“We can’t expect juries to make good decisions without the accurate and relevant facts of a case,” Nashed said. “Texas trial courts should not allow plaintiff’s attorneys to implement their ‘Reptile Theory’ - a trial tactic that focuses on the introduction of irrelevant, but highly prejudicial evidence, for the sole purpose of inflaming jurors’ passions on the hope they will award massive damages that are unjustified by the facts.”
TLR will also focus on the presentation of medical damages at trial this session.
In 2003, the Texas Legislature added section 41.0105 to the Civil Practice and Remedies Code (the paid or incurred statute), providing that a plaintiff seeking to recover healthcare expenses in a civil case must present to the jury the amount actually paid or still owing for healthcare services, not the amount billed by the healthcare provider, which can be inflated above what has been actually paid or is still owing.
Nashed says plaintiff lawyers are avoiding the requirement by sending their clients to healthcare providers who agree not to submit medical bills to a third party for payment (insurance, Medicaid, etc.). Doing so avoids the “discounted price” negotiated by insurers, and allows the attorney to present the higher, billed rate to the jury as damages when, in fact, that amount has not actually been paid and is not owed.
“In many instances, the plaintiff lawyer and healthcare provider have a long-term, symbiotic relationship,” Nashed said. “These providers tend to over-diagnose, over-treat and over-bill in an effort to maximize the amount of medical damages sought by the plaintiff in the lawsuit.
“The provider then serves as the plaintiff’s star witness at trial, often testifying to a lifetime injury arising from an inconsequential accident.”
The scheme, Nashed says, drives up the “value” of the lawsuit because juries tend to award more in noneconomic damages, such as mental anguish and pain and suffering, and are more likely to award punitive damages if the medical bills are substantial. Using the plaintiff’s lawsuit recovery, the lawyer then splits the lawsuit proceeds with the provider, giving the leftover funds to the plaintiff.
“Everyone makes something extra when a healthcare provider shifts focus from healing a patient to creating a litigation-based profit center,” Nashed said. “This scheme - which is commonly used in commercial vehicle lawsuits - is plainly contrary to the intent of the 2003 statute, which was to prevent the use of medical billing to create ‘phantom damages’ in lawsuits.
Sen. Charles Schwertner has filed Senate Bill 207 to address the issue.
The bill aims to give juries better information about medical billing. For instance, instead of hearing only of the provider’s billed charges, the jury may be presented with other evidence that tends to prove the actual market value of medical services.
“This will help juries decide the amount of money that should be awarded to a plaintiff to make him or her whole - without creating a windfall - in relation to the accident-caused costs of medical care,” Nashed said.