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  • Writer's pictureNicole Linko


Since the Republicans took over Texas, laws have been passed and the all Republican Texas Supreme Court have taken away many rights of the individual in the name of “Reform.” The individual has lost big time and the insurance industry has gained an unprecedented advantage.

Tort reform started out riding a pack of lies that doctors were leaving the state because excessive jury verdicts and excessive insurance premiums were making the practice of medicine less lucrative. Tort reform spilled over into other areas.

A few examples of the carnage is as follows:


In healthcare liability cases (any case against a healthcare provider arising out of healthcare) non-economic damages (physical pain and mental anguish and impairment) are capped at $250,000. If the victim is age 25, paralyzed from the neck down, the maximum recovery for non-economic damages is $250,000. The intent of passing such a law was to prevent victims who did not have serious injuries resulting in permanent serious impairment from getting large amounts. The catastrophically impaired got the same shake. The legislature was not bold enough to place graduated caps that depended on whether or not the victim was totally disabled on a permanent basis.



The Texas Supreme Court did away with victims of malpractice being able to recover damages from a hospital on account of a hospital knowingly letting bad doctors keep operating in its hospitals. It does not matter that the doctor had a cocaine addict or just incompetent. The Supreme Court says the victim must prove malice on the part of the hospital, but proving malice is impossible because hospitals have a peer review privilege where they can hide from public scrutiny the facts they know about the bad doctors on their medical staffs.


Prior to tort reform, the victim could recover the amount of all medical expenses that were reasonable and necessary to treat the injuries. The amounts that were reasonable and necessary are usually much higher than the amount that an insurance company, Medicare, or Medicaid actually pay. Once a healthcare provider accepts certain benefits, the victim is no longer liable for it. Thus, paid or incurred is the amount actually paid or the amount the victim is liable for. That amount is usually 30% to 50% of the total amount charged. In the past, the victim had the cushion that was left to cover a contingent attorneys’ fee. Now they do not. The paid or incurred limitation has significantly reduced the victim’s recovery in all meritorious claims. The victim cannot be made whole anymore.


Subrogation is a legal right that insurance companies, Medicare, Medicaid, workers’ compensation, and other payors (Subrogee) of the victims medical expenses get by either contract or statutory law to step in when the victim makes a recovery and be repaid right of the top of the recovery for whatever amount it paid for the victims medical expenses. When a settlement is achieved, the Subrogee gets to get paid the first money. Just a few years back, the Subrogee could not get its money back unless the victim was first made whole. The Texas Supreme Court has now done away with the “made whole doctrine” and given insurance companies the first priority to the victim’s damage recovery.

These changes have drastically impacted the amounts of money that victims can recover. The amounts of money recoverable are drastically less, and out of the recovery, the Subrogee gets the first money. Many lawyers now do not take cases for the reason they end up working for the Subrogee and the victim’s recovery does not justify the time and expense to handle the case. In cases where the likely damage recovery is under $50,000 (majority of cases), if the victim does not settle with the insurance company, the cost of taking the case to trial just further reduces the amount of compensation the victim ultimately obtains.

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