Geoffrey E. Schorr Medical Malpractice Law Blog on Lawyers.com

In 2003, powerful lobbyist groups in Texas spent millions of dollars
and utilized significant resources to flood the media with a campaign
directed at having voters vote for an amendment to the Texas
Constitution to cap non-economic damages in medical malpractice cases
(non-economic damages are intangible damages such as pain and suffering
and mental anguish).  The legislation passed by the slightest margin
(51-49%) and victims of medical malpractice in Texas since 2003 have
found it very difficult to secure justice, or to even find a medical
malpractice attorney accepting medical malpractice cases because the
caps are so restrictive that most attorneys are unable to finance such
cases without losing money.  Essentially, because of the 2003 changes
to Texas medical malpractice laws, negligent doctors have been provided
with an escape from accountability, and innocent victims rarely achieve
justice.

Lobbyists for medical malpractice caps used scare tactics to
persuade voters - for example, some claimed that because of "frivolous
lawsuits" doctors were fleeing Texas, and, therefore, Texans would find
it increasingly difficult to secure medical care.  This simply was not
true!

Just as with Texas, special interest groups in Nevada also used
publicity stunts to sway voters in that state to cap non-economic
damages in medical malpractice cases.  The Nevada lobbyists seemed to
have adopted a page out of the book used by the lobbyists in Texas -
making the same false claims to voters in that state that were used by
lobbyists in Texas.  Unfortunately, the lobbyists disingenuous efforts
worked, and voters in Nevada voted to cap non-economic damages for
medical malpractice cases at $350,000 ($100,000 more than the current
cap in Texas of $250,000).

However, caps in Nevada may be repealed this year.  The Las Vegas
Sun reports that Nevada lawmakers are grappling with removing the caps
on non-economic damages in that state because of a recent inexcusable
act of malpractice.  Recently thousands of patients were exposed to the
very dangerous Hepatitis C virus at a clinic in Nevada, apparently
because the doctors running the clinic have been more concerned with
their bottom line than with the safety of their patients.  As a result,
Nevada lawmakers are considering removing caps so that innocent victims
may hold the clinic and its doctors accountable.  This would be a win
for the victims of medical malpractice in Nevada.

The effects of the caps have been devastating to victims that live
in states where caps have been instituted.  One example contained in
the Las Vegas Sun article referred to above involves a young 25 year
old woman, mother of two children, who underwent a surgery to have rods
placed in her back to help with her scoliosis.  The surgeon informed
her that she would be out of the hospital and walking within two days
of the surgery.  Unfortunately, the young woman was paralyzed as a
result of the doctor's negligence, never to walk again, and the most
she is allowed to recover under Nevada's current law for her pain and
suffering and mental anguish is $350,000.  Disturbingly, in my
practice, I learn too often of stories that are very similar and happen
to innocent victims of medical malpractice in Texas.

Hopefully, in the not too distant future, the same type of anti-cap
movement that is happening in Nevada will begin in Texas.  Too many
Texans have already been devastated by the caps, and many more will be
in the future until the laws are changed to allow Texans to hold
negligent doctors accountable. With the current caps Trial Lawyers in
Texas have their hands tied, and negligent doctors have little to deter
them from committing and repeating negligent behavior.