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A sad day for Texas nurses

By Laureen Bagley, Ray Hatcher, Glenn Perry and Alan Robertson
July 20, 2012 at 11 p.m.

June 29 was a significant day for the legal rights of Texas nurses. On that day, the Texas Supreme Court, in a 6-3 opinion, opted to inexplicably treat workplace injuries for nurses and other hospital employees like they are medical errors. The result is that the legal rights of health care workers who are hurt on the job are severely and arbitrarily limited.

Passed in 2003 by the Texas Legislature in response to a nonexistent, manufactured "medical malpractice liability insurance crisis," the Texas Medical Liability Act significantly limits access to the courthouse for victims of medical negligence by limiting their recovery for non-economic damages to $250,000. The Legislature's goal was to reduce the number of lawsuits, regardless of merit, filed against physicians, hospitals, and other health care providers. In that regard, the Texas Medical Liability Act has been wildly successful, reducing health care liability claims by 95 percent since its enactment.

Unfortunately, the high cost of litigating medical malpractice claims has had the effect of limiting the availability of a remedy to only those who are high wage-earners and those who will need a lifetime of medical care. The 2003 Legislature spoke, and its voice was clear and unmistakable: If you are elderly, a child, disabled, or a stay-at-home parent, your life is not worth as much as that of a high wage earner.

But we digress. The Texas Supreme Court's holding in Texas West Oaks Hospital, LP v. Frederick Williams, gives East Texas nurses and hospital employees an unhealthy dose of the same medicine. First, some background: If an employer chooses not to purchase worker's compensation insurance, it is subject to lawsuits brought by its employees for damages suffered as a result of on-the-job injuries. The Legislature instructed that those employers who opt not to purchase worker's compensation insurance would lose all of their common law defenses to the employee's lawsuit. These rights are important to East Texas nurses and other health care providers because most, if not all, of the hospitals in the East Texas area chose to risk not purchasing worker's compensation insurance and take their chances at the courthouse.

For the first time ever and in a very strained, hypertechnical interpretation of the act, the Williams case requires that employees of health care providers who file claims against their employers comply with the Texas Medical Liability Act and imposes the same damage limits on injured nurses and other healthcare providers as on injured patients.

Shockingly, six justices signed on to this opinion. What could be more "activist" than contorting a statute to apply to people to whom the Legislature never intended it to apply? There was no "medical malpractice insurance crisis" - manufactured or otherwise - caused by injured nurses suing their employers. Rather, drafters of the Texas Medical Liability Act plainly designed it to make physicians, hospitals, and nurses practically immune from lawsuits filed by their patients, not to enrich hospitals at the expense of their nurses or other hospital staff members unfortunate enough to be injured on the job.

Nevertheless, the court has spoken and interpreted this statute to apply to injured nurses whose employers do not purchase worker's compensation insurance. We encourage all nurses and healthcare providers, as well as those who love them or believe that they provide a valuable service to our community to write their state representative and state senator and ask that the Legislature right the Court's wrong.

<em>- Laureen Bagley, Ray Hatcher, Glenn Perry, and Alan Robertson are lawyers who live and work in Longview.</em>



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