While I find the practice of health law and medical malpractice to be interesting and rewarding, there’s one aspect that I really don’t enjoy: Explaining to some injured and grieving families how Texas tort reform laws make their cases economically unviable to pursue despite serious injury or death being caused by legitimate medical malpractice.
The most significant insurmountable hurdle for some cases is the cap placed on non-economic damages. Non-economic damages include elements such as pain and suffering, mental anguish, disfigurement, and loss of consortium. In Texas medical malpractice lawsuits, non-economic damages are limited by statute to $250,000–$750,000, depending on the type and number of defendants named in the petition.
Many laypeople and even a lot of attorneys who don’t regularly handle medical malpractice lawsuits believe that these caps apply to all damages, but that’s simply not the case. Economic damages are not limited by tort reform. Economic damages include elements such as past and future medical bills and healthcare expenses, and past and future lost wages or loss of earning capacity.
In essence, Texas tort reform places a higher value on lives of individuals who are working and producing income than those individuals who are either too young or too old to work and produce.
One of the thorny challenges of handling medical malpractice claims involving serious injuries or wrongful death to minors—individuals under the age of 18—is proving the true measure of economic damages. Most minors aren’t of an age where they are producing income and even those who have will not reached their earnings potential because their education and training is incomplete.
Even in situations where a bright, talented minor died or was permanently and severely injured because of medical malpractice, some courts have considered proof of lost future earnings to be unattainable.
A recent opinion from Houston’s 14th Court of Appeals approved of a trial court’s different approach following a jury verdict for the plaintiff’s in a pediatric suicide case involving allegations of medical malpractice. The case is styled Pediatrics Cool Care v. Thompson, No. 14-19-00031-CV, 14th Court of Appeals. You can read the opinion here.
The young lady whose life was tragically lost was unemployed at the time of her death, so she had no earnings history. She hadn’t completed her education. Yet, after finding healthcare provider defendant’s negligent in their handling the mental health care of this minor patient, the jury awarded over $1 million to the parents for economic damages from expected future income.
The defendants appealed the negligence finding of the jury, as well as the award of damages.
From a legal standpoint, the parents were the minor’s wrongful death beneficiaries. In order to meet their burden of proof on economic damages, they had to prove to separate things.
First, the plaintiffs had to prove the likely future earnings of their daughter. The plaintiffs produced testimony from the family that the minor wanted to be a doctor. Additionally, the plaintiffs produced testimony from an economist that included calculations of her future earnings based on her anticipated educational attainment.
In cases that we’ve handled, we would typically strengthen this type of evidence with testimony from a vocational expert who can testify about the minor’s grades and likely educational attainment. Defendants always attack such testimony, though, as speculative. The younger the minor, the more these objections seem to gain traction.
Second, the parents testified that their daughter had stated her desire to take care of them as they grew older. This testimony is significant because it showed that they, as wrongful death beneficiaries, suffered an actual economic loss by their daughter’s death. This type of testimony is frequently the only type of evidence that can be produced in a case involving the wrongful death or serious permanent and disabling injury (such as brain injury) to a minor.
The trial court found that the plaintiffs’ evidence was sufficient to support the jury’s verdict and Houston’s 14th Court of Appeals. While this is a great victory for patients and families in Texas, I won’t be surprised if the defendants petition for the Texas Supreme Court to review this case. We will keep you posted.
If you’ve been seriously injured because of poor medical care in Texas, then contact a top-rated experienced Houston, Texas medical malpractice lawyer to discuss your potential case.
