Under the Knife: The Texas Experiment
Riding an electoral wave that saw the election of Rick Perry to his first full term as governor and a large class of impressionable freshman members in the Texas House of Representatives led by a hardline Speaker, the corporate immunity lobby tilled fertile soil in 2003. Emboldened after pushing through legal restrictions in 1995 and 1997, the lobby and their functionaries in the Legislature rammed through House Bill 4 in 2003, an omnibus package of restrictions that were sweeping in scope and unprecedented in their destructive effect on the rights and lives of everyday Texans.
Fourteen years later, patients in Texas continue to struggle with high cost, low access health care, wrongdoers are allowed to divert and evade responsibility for their actions, and our most vulnerable are most heavily penalized by limits on their individual legal rights.
Totaling 133 pages in length, HB 4 was a sprawling piece of legislation that upended and undercut myriad aspects of the Texas civil justice system. Among its most prominent provisions are those dealing with medical malpractice, nursing homes, and products liability. It has proven to be a failed experiment that ultimately sacrificed patients for profit.
HB 4 restricts the rights of patients in numerous ways, including imposing a one-size-fits-all $250,000 cap on non-economic damages that effectively deprives many patients and their families of due process; allowing emergency room doctors to escape accountability for substandard care; and requiring patients to give pre-suit notice of any health care liability claims and file a detailed expert report within an arbitrary 120-day deadline (with case-killing penalties if they fail to do so).
The noneconomic damages cap, which is not indexed to inflation and thus worth less each year, hits those without wages and economic damages particularly hard, making even the most clear-cut malpractice cases on behalf of the elderly, the young, the disabled, and stay-at-home parents financially impossible to pursue for many given the high cost of retaining medical experts, which comprise the bulk of litigation expenses. The merits of one’s case are far outweighed by their socioeconomic status. Under Texas law, the value of one’s life is essentially reduced to the value of their paycheck. You are what you make. Life is cheapened and families are devalued. Instead of being a right possessed by all, what little justice remains becomes a privilege for the few.
Section 6 of proposed H.R. 1215 reads: “A health care provider who prescribes, or who dispenses pursuant to a prescription, a medical product approved, licensed, or cleared by the Food and Drug Administration shall not be named as a party to a product liability lawsuit involving such product and shall not be liable to a claimant in a class action lawsuit against the manufacturer, distributor, or seller of such product.” A similar FDA shield has been used since 2003 in Texas.
HB 4 directed Texas courts to defer to federal agencies in many state products liability actions, strange for a state that is fiercely independent and that resists federal intervention at virtually every turn. For actions alleging inadequate warnings regarding pharmaceuticals, a rebuttable presumption is created in favor of defendants if the warnings that accompanied the product were approved by the United States Food and Drug Administration (i.e., the “FDA defense”). And in other products liability actions concerning the formulation, labeling, or design of a product, a similar rebuttable presumption (i.e., a legal conclusion that is taken as true unless proven otherwise) is created for product manufacturers or sellers who show that they complied with federal regulations.