Pay No Attention to 'Dr. Death' (Gwen Moritz Editor's Note)

by Gwen Moritz  on Monday, Oct. 8, 2018 12:00 am   3 min read

It remains to be seen whether the state Supreme Court will reinstate Issue 1 on next month’s statewide ballot. For proponents of the tort reform amendment, the success of a podcast called “Dr. Death” could not come at a worse time. Perhaps not too many voters will tune in. Maybe even fewer will make it to the last chapter of the disturbing story…

But if you listen to the final chapter of the story, Episode 6, you’ll learn that another impediment to the public learning about the butchery of “Dr. Death” was the difficulty injured patients and their survivors had in finding lawyers who would represent them in civil court. That, Beil reported, is because Texas adopted tort reform in 2003 that limited noneconomic damages (“pain and suffering”) to $250,000. “It is not worth an attorney’s time and energy to take on a malpractice case in the state of Texas,” one of Duntsch’s victims told Beil.

Despite an increase in population of more than 25 percent since 2003, the number of malpractice claims filed across Texas each year has dropped by more than half. Not the number of successful claims or the size of the verdicts, but the number of patients who even filed suit…

Ultimately, Beil reported, at least 19 of Duntsch’s patients (or their survivors) got settlements; 14 were represented by the same lawyer “more out of a sense of outrage than out of any financial upside.”

Issue 1 would cap noneconomic damages in Arkansas at $500,000, which would certainly be more attractive to lawyers than Texas’ cap. But Issue 1 also forbids lawyers from taking a contingency fee of more than one-third of the net amount awarded to the client. Proponents sell that as more money for the plaintiff, which is certainly true if it doesn’t discourage lawyers from taking the case in the first place.