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Just when you thought it couldn’t get any worse for the little guy, it did in Texas, where Gov. Rick Perry has signed into law a new “loser-pays” bill. The bill, passed in the name of so-called "tort reform" is supposed to weed out junk lawsuits, but it is as likely to end up hurting people with legitimate medical malpractice claims.

The new bill will force plaintiffs already suffering from injuries due to medical malpractice to pay the court costs and attorney fees of the person they are suing if they lose. As an experienced medical malpractice attorney I know this is not effective tort reform; instead, it’s just a for way big insurance companies that want to avoid paying for harms caused by their policy holders to block access to the courts for middle-class and poverty-stricken Americans.

Tort reform like caps on compensation have already reduced the recoveries for losses that victims can receive, making it difficult for a victim who has already had a significant harm to their health to sustain himself. Now, on top of that burden, if the victim doesn’t hire a good enough lawyer, or if the jury does not agree with the merits of a lawsuit, the patient could be paying for the other side’s court costs as well. Tort reforms are supposed to help in creating an atmosphere in which doctors and hospitals can deliver more effective care without worrying about significant liability issues. But the medical malpractice insurance premiums that the doctors pay is supposed to cover the lawyers fees to defend cases. Putting an injured patient at risk for paying the defendent’s insurer on top of his own legal team will shut the courthouse door even on folks with legitimate cases.

In Virginia, we already have laws to prevent unsupported cases as certificates are required before suit to verify another doctor has opined that the defendant messed up. This law in Rick Perry’s state is against the ideals in the U.S. Constitution’s Seventh Amendment right to a jury trial for torts and the American justice system’s long traditions. Texas’ rule now follows the English way of law in protecting the rich and corporations from the people. I suggest that anyone who is the victim of medical malpractice view our guide that explains VA medical malpractice laws in easy-to-understand language.


About the Editors: The Shapiro, Cooper, Lewis & Appleton personal injury law firm, which has offices in Virginia (VA) and North Carolina (NC), edits the injury law blogs Virginia Beach Injuryboard, Norfolk Injuryboard and Northeast North Carolina Injuryboard as pro bono services.

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