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Another unintended consequence of tort “reform”

From Lisa Falkenberg:

At every turn in her ordeal, Laura has felt irrelevant.

The Houston mother of two says she was raped in her hospital bed by a doctor who she claims checked his phone afterward while she cried. She reported the rape to nurses who responded with cold skepticism. She had to wait nearly two years for police to collect the alleged attacker’s DNA and make an arrest.

And now, there’s this: the physician charged with assaulting her at Ben Taub hospital in November 2013, Dr. Shafeeq Sheikh, may get off scot-free in civil court.

And Texas law may entitle her to only modest compensation from Sheikh’s employer at the time of the rape, the prestigious Baylor College of Medicine.

Sheikh continued at Baylor for seven months following the incident and was then hired by Houston Methodist. A Baylor spokeswoman, citing pending litigation, has refused to allow interviews with Baylor officials or to answer questions.

The Texas Medical Board suspended Sheikh’s license following his arrest, and he has been fired from Methodist. His attorney says Sheikh looks forward to proving his innocence in court.

On Oct. 19, Laura’s attorney sued Sheikh, Baylor, Ben Taub and Harris Health, alleging, among other things, negligence.

Baylor’s lawyers have submitted to the court a proposed order to dismiss Sheikh from the case, as “mandated” by law. Baylor’s attorney, Jeff McClure, declined comment.

The law he cited, in the “tort claims” chapter of the Civil Practice and Remedies Code, says that if a governmental unit and its employee are sued, the employee shall “immediately” be dismissed.

How is a doctor at a private medical college considered a government employee?

Baylor doctors staff Ben Taub, which is a public hospital owned by Harris County.

The doctor isn’t the only one who can deploy the “government unit” shield. Baylor lawyers have successfully argued that the college itself can be construed as a government entity and is entitled to the same protections a county institution would enjoy.

In Texas, a limited government liability state, those protections are great. Baylor can argue it is immune to the claim altogether. Even if Laura’s lawyers are successful in challenging that immunity, and she is granted an award, the most a municipality can be forced to pay is $100,000.

“You can get about $300,000 if you spill coffee in your lap at McDonald’s,” says her lawyer, Mark Weycer. “But this poor lady gets raped at Ben Taub Hospital and on her best day at the courthouse, she gets $100,000.”

[…]

How can this be? The 2003 tort reforms were flawed in many ways, but did lawmakers really intend to go so far as to protect doctors who rape patients?

Absolutely not, said former state Rep. Joe Nixon, a Houston Republican who sponsored the legislation in the House. He said he was “flabbergasted” and “stunned” to hear that the Texas Supreme Court would interpret his bill to mean assault is medical malpractice.

“Any criminal activity by any medical personnel is not covered by this bill, under any circumstances,” he said.

Nixon, an attorney, cautioned in an interview Friday that he doesn’t handle medical malpractice cases, he wasn’t familiar with Laura’s case and he doesn’t comment on pending litigation. But he pushed back on the notion that his bill is responsible for the hurdles Laura faces in her civil action.

That includes the provision that allows Sheikh and Baylor to claim government protections. Perdue, the personal injury lawyer not connected to her case, said a slight change in Nixon’s 2003 bill allowed medical providers to be considered public servants.

Nixon denied that change, but when presented with the language, he argued that a doctor who rapes a patient isn’t a public servant because he’s acting outside the “course and scope” of duty.

See here and here for Falkenberg’s prior columns on this topic. It’s far more likely to me that the legislators who crafted our awful tort “reform” law didn’t give the matter much thought. I’m sure whichever lobbyists that discussed the medical-providers-as-public-servants exception with then-Rep. Nixon had perfectly reasonable-sounding justifications for it that a dedicated lackey to corporate interests like Nixon was only too happy to sign off on. And let’s be clear, it would be 100% consistent for the Supreme Court to read the law in this fashion, given how in the pocket of corporate interests they are as well. But look, there’s an easy way to fix this, and that’s for the 2017 Lege to pass a bill (*) clarifying the intent of the 2003 tort “reform” law to explicitly state that doctors like these are not “public servants” and thus are not covered by tort “reform”. Bitter partisan that I am, I think the odds of that happening are slim to none, but I’ll be happy to be proven wrong. And as long as I’m in partisan mode, running on a promise to pass a law to remove this protection from rapists would be an excellent thing for Democratic candidates up and down the ballot to run on. Let’s get Greg Abbott and Dan Patrick on the record on this, shall we?In the meantime, I hope Laura and her attorney can find a way to get justice from this awful situation, whatever the Lege and the Supreme Court do.

(*) Given that the tort “reform” law was enshrined in the Constitution, we may need another amendment to achieve this. I’m unclear on this point, so if any of the legislative experts in my audience care to weigh in, I’d appreciate it. My point about the partisan politics of this remain regardless.

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2 Comments

  1. Joe says:

    It just requires a statutory change, you don’t need to touch the constitution. This has become an institutionalized loophole, private hospitals contract with someone like UT Physicians to lower their liability on med mal claims all the time.

  2. Manuel Barrera says:

    Drunk police officer hits a vehicle and driver is seriously injured. Lawyers makes mistake and sues government first, government claims it was not within scope. Driver loses, that is where the law stands now, more than just hospitals and doctors. Based on a five four decision that does not make sense, Franka v Velasquez ( http://www.texas-opinions.com/11-Franka-v-Velasquez-MD-Tex-2011-HCLC-TTCA-med-mal-suit-against-government-employee-dismissal.html ).

    Molina-drunk driver
    http://causeofactionelements.blogspot.com/2015/05/texas-supreme-court-lets-allegedly.html