A recent piece by Becky Oliver at Fox 4 revealed how dysfunctional the Texas Board of Medical Examiners is. She uses some alarming statistics and focuses on several Texan families who have experienced first-hand how harmful the institution can be. To understand what makes these heart-wrenching stories so important, you have to understand what the board’s role is in the medical oversight system as a whole.

What You Need to Know About the Board

The Texas Board of Medical Examiners was designed to protect patients from doctors and other medical professionals who are unethical or harmful. The idea was that doctors, who are best equipped to understand when a medical mistake has been made, would police their own. The board would place those who failed to live up to the standard of care under review, and, if necessary, enforce a variety of disciplinary actions. These actions can be anywhere from a small fine to revoking a doctor’s right to practice.

Like many institutions, there’s nothing wrong with the idea of the board. In the abstract, it is an ideal mission where the goal is “to protect and enhance the public’s health, safety and welfare by establishing and maintaining standards of excellence used in regulating the practice of medicine and ensuring quality health care for the citizens of Texas through licensure, discipline and education.”

Where the Board Has Failed

What’s frustrating is the execution of the board’s lofty principles. It’s the Texas Board of Medical Examiners inability to address Texan’s serious health concerns that has turned a noble ideal into a hectic bureaucratic organization that too often over-protects doctors at the expense of patients. The board has failed on three levels: They are ineffectual in conducting timely investigations; they refuse to provide adequate transparency for patients who are involved, and they are unwilling to enact proportional disciplinary responses once a problem has been discovered.

Numbers wise, it breaks down like this:

• In the last 9 years complaints have gone from 4,900 to more than 8,000.
• Despite the increase in complaints, investigations have gone down 25%.
• For the few that are investigated, claims take on average 328 days to resolve.
• Texas is ranked 34^th nationwide in disciplinary actions against medical professionals.
• The public only sees disciplinary action, and even then only when it’s been finalized.

Real Life Examples of Hardship

It can seem very impersonal, until you listen to the stories from patients who are desperate to get the board’s attention.  Many individuals’ voice their concern in the Fox 4 news piece. One of the saddest is the viewpoint of the Dickerson family. Jennifer Dickerson saw a maternal-fetal medicine expert, Dr. Manuel Rivera-Alsina, when she was pregnant.

He failed to diagnose the baby’s congenital diaphragmatic hernia, leaving the family in a difficult position with no opportunity to look for treatment. Their daughter died right after she was born, and the Dickersons looked to the Texas Board of Medical Examiners for answers. After a lengthy process, Dr. Rivera-Alsina walked away with an insignificant $2,000 fine and instructions to get more training. A response that the Dickersons believed was negligible compared to the damage he had done.

It’s not only the measure of the board’s response; it’s also the snail pace of the investigations. In one case mentioned on the news, a woman underwent botched plastic surgery that was more than just cosmetically problematic. She actually had to have 27 follow-up surgeries and has to wear braces to keep her feet in place for the rest of her life. She brought a complaint against the doctor, Dr. Molina, to the medical board.

The board dragged its feet, and during their lengthy tight-lipped investigation one of his newer patients, Monica Moreno, was fighting for her life. Moreno had contracted a severe infection after the surgeon performed what should have been routine procedures.  The Moreno family has commented that of course they would never have gone to the doctor if they knew of the prior complaints. If the board is meant to prevent doctors from continuing to make mistakes, then they need to suspend those under investigation or act faster because during the average 328 days it takes to investigate, other patients are at risk.

Notorious Offenders – Letting the Worst Offender Go

Sketch by Greg Conlin of Dr. Jacques Roy at his federal detention hearing - NBC DFW

The most publicly embarrassing incident for the board that Oliver addressed was related to the now infamous Dr. Jacques Roy. If you haven’t already heard, Roy has been accused of committing the largest act of Medicare fraud ever recorded – stealing $350 Million dollars from the government. Most of the nation had never heard of the Rockwall doctor until he was arrested, but the Texas Board of Medical Examiners had dealt with him before.

He was investigated in 2001 after the death of Deborah Sommers. She died with an elevated level of hydrocodone in her system. A full investigation by the board showed the doctor was having an affair with her and wrote her nearly forty prescriptions for the drug. Her daughter Amber, then 9 years old, talked about how much the doctor’s name has haunted her family. If the investigation showed all this, what was the board’s decision? Five years of probation – a sentence that obviously didn’t do the trick because he’s now being held in Federal prison.

The Big Picture – How This Effects All of Us

Although I do not personally know any of these families, much of what they have experienced rings true for the clients and potential clients that communicate with our office daily. They feel pushed aside or sometimes completely forgotten by the Texas Board of Medical Examiners and the system as a whole. In today’s political climate, the civil justice system is simply not equipped to process the volume and complexity of medical mistakes that occur in Texas. We need the Texas Board of Medical Examiners to do its part.

As Becky Oliver explains in her broadcast, one of the justifications for tort reform was to enlarge the size and powers of the medical board to ensure that the justice that now could not be dealt in the courts could find a home in the medical peer-review system. The board’s inability to efficiently and fairly investigate medical professionals has further unbalanced an already unequal system.

Early this month The Dallas Morning News ran a story called, “Civil Jury Trials Plummet in Texas” that mentions some staggering statistics on the decline of civil juries. While the average person might still think most lawsuits end with compelling arguments before a group of twelve of your fellow citizens, the reality is that juries are quickly disappearing from our trials.

For example, in 1996, 1 in every 48 lawsuits filed ended in a jury verdict. By comparison, last year only 1 in 183 lawsuits went before a jury. These numbers are even more significant because while the number of jury trials has decreased by a third, the number of lawsuits has increased by about 25%. These days only 20% of all civil disputes are resolved by juries.

So why are jury trials disappearing? The article makes several good points. It identifies these major factors: tort reform, Texas Supreme Court rulings, legal costs and lawyers’ willingness to try cases in front of juries.

Caps, Courts, Costs and Cowardice

Now I’ve already written a lot on tort reform, but I don’t think I can stress enough how much it effects civil trials. Tort reform changes have made it much more challenging for the injured parties to win a lawsuit. It has simultaneously ensured that even after presenting a flawless case, awards may not cover all the damages.

In addition to the problems caused by tort reform, the Texas Supreme Court has made changes in how the law itself works in terms of civil trials. What this comes down to is that important decisions that the jury used to be trusted with are now at the judge’s discretion. Here’s another look at the numbers: In 1996 only 3,488 cases were resolved by judges in motions for summary judgments, but by 2010 it shot up to 5,597 cases. Begging the question, how many will be decided that way this year? Will it continue to increase through 2012?

Changes from the Top

The Texas Supreme Court and along with the appellate courts are sending a message – jury verdicts are less valid than decisions made on the bench. Unfortunately, there are many judges who seem to agree with this.

One of my favorite quotes from the article was from Judge Molberg who stands behind an individual’s right for a trial. He told The Dallas Morning News this, “Binding mandatory arbitration has been driving cases out of our court system and toward rent-a-judges and tort reform has discouraged or impeded people’s right to jury trials. Some people may think that is a good thing, but it means that real people are not getting their claims heard — at least not by a jury of their peers.”

Court Fees Out of Control

It’s not only about attitudes and political philosophies; some of this comes down to nickels and dimes. Or in this case, hundreds even thousands of dollars in legal costs. The expensive process of discovery compounded with high court fees can be debilitating for law firms and even small companies. Ultimately, those costs are passed down to the clients, plaintiffs and defendants both, who deserve to have their day in court.

Facing a Jury

This all asks the question – what about lawyers? How do we feel about being in front of a jury in Texas courts? Houston attorney David Beck comments in the article that there are high-ranking lawyers out there in big firms who have never really tried a case before a jury.

Trying a case in front of a jury is still one of the most important experiences an attorney can have. A jury trial should never be something a lawyer shies away from. A decision to take a trial to a jury should be made only with the client’s best interests at heart. Of course you have to factor in legal strategies and costs, but lawyers have a responsibility not to settle solely based on their own fear of a jury verdict.

Upholding the Right to Have a Jury

A right to a jury of our peers is a core American value. It’s a founding principle in our government and it should be just as highly valued today as it was when Thomas Jefferson included it in the Declaration of Independence. It’s up to all of us to ensure that civil juries aren’t a thing of the past.

This month is National Distracted Driving Awareness Month and the National Safety Council (NSC) in D.C. has made a national wide ban on all cell phone use while driving it’s number one priority. Piggy backing on the report that the National Transportation Safety Board (NTSB) released last December, the NSC has released its own 2012 report which says that phone use was cited in at least 24% of car crashes.

Now both national organizations are asking the States to ban all cell phone use on the road including texting, talking and hands-free devices. If that sounds extreme at first consider some of the other harrowing stats from the National Highway Traffic Safety Administration (NHTSA):

• Using a cell phone while driving – whether it’s hand-held or hands-free delays a driver’s reactions as much as having a blood alcohol concentration at the legal limit of .08 percent.
• Sending or receiving a text takes a driver’s eyes from the road for an average of 4.6 seconds, the equivalent-at 55 mph-of driving the length of an entire football field, blind.
• Headset cell phone use is not substantially safer than hand-held use.
• Driving while using a cell phone reduces the amount of brain activity associated with driving by 37%.

The national ban is a big step, but no more extreme than the facts. Now that these national organizations are calling for change, hopefully we’ll see positive changes right here in Dallas. It won’t be overnight, but we can each do our best to be safer.

Take this month of April to make a change in your routine. Even if you don’t usually answer your cell when you’re driving, take the added precaution of placing it on silent – that way you won’t be tempted to say a quick ‘hello’ and risk being in an accident.

As a native Texan, I’ve seen my fair share of tornadoes. The tornadoes that ripped through the Metroplex this week were the most frightening in years. Together our staff watched the warnings on TV and spoke over the phone with loved ones on Tuesday afternoon, making sure that everyone was as safe as they could be under the circumstances.  My office and home were lucky not to have been damaged by these twisters. Our hearts here at the firm go out to all those were not so lucky.

When weathering tornadoes the most important thing to remember is to be prepared. The more organized your family and friends are, the safer you will all be. Organization and preparation are particularly key for large institutions like schools, hospitals and nursing homes

For instance, the Green Oaks nursing home in Arlington was badly damaged this past Tuesday. Despite the extensive physical damage, there were only two minor injuries.  When the tornado warnings were issued, residents were moved from the residential wings into the reinforced center of the building. The tornado actually tore the roof off the building, but almost all the residents were secure. Green Oaks had a plan, and it worked.

Here are some of my own constructive tips on how other nursing homes can be prepared for tornadoes:

Awareness – Understanding the Risks

Every nursing home operator and manager should know that tornadoes occur most frequently in the United States, east of the Rocky Mountains, during the spring and summer months. In an average year, 800 tornadoes are reported nationwide, resulting in 80 deaths and over 1,500 injuries. In the southern states, such as Texas, peak tornado occurrence is in March through May.

In Touch – Monitoring News Coverage

When conditions are favorable for severe weather to develop, a severe thunderstorm or tornado watch is issued. Weather Service personnel use information from weather radar, spotters, and other sources to issue severe thunderstorm and tornado warnings for areas where severe weather is imminent. If a tornado warning is issued for your area and the sky becomes threatening, nursing home personnel must move their patients to a per-designated place of safety. Organizations should have someone assigned to monitor radio stations so that appropriate measures can be taken.

Shelter – Choosing the Safest Place

Institutions in our area should consider specially-reinforced safe areas and be prepared to move occupants there in the event of a warning. Buildings without these areas should have a pre-designated shelter such as a basement. If an underground shelter is not available, move into interior hallways or small interior rooms on the lowest level. Avoid auditoriums, gymnasiums and other large rooms with long free-span roofs. Corridors with exposed entrances (as opposed to interior hallways) can be dangerous. Avoid glass display cases, glassed-in stairwells and doorways.

Don’t Hesitate – Seek Shelter ASAP

It’s a myth that open windows equalize pressure and minimize damage when a tornado strikes. Opening windows allows damaging winds to enter the structure. Leave the windows alone and immediately go to a safe place. Since weather services can provide some warning about hurricanes and tornadoes it is imperative that a responsible individual monitor such information. Advisories are immediately passed on to the media. If no one is available to constantly monitor radio or TV there are numerous services that send weather alerts to E-mail addresses, pagers and cell phones.

Organizational Checklist

Every nursing home must develop a severe weather action plan. You should identify the area of your safest area(s) and have frequent drills. Some specific issues of concern:

• Make sure someone knows how to turn off electricity and gas in the event the building is damaged.
• Keep residents in the building even if scheduled to leave. Seniors are safer inside than in a bus or car. Residents should not be allowed to leave with family members if severe weather is approaching.
• Gatherings in large spaces should be delayed if severe weather is anticipated. Large rooms, cafeterias, and auditoriums offer minimal protection from tornado-strength winds
• Move Residents quickly into   interior rooms or hallways on the lowest floor.
• Practice drills must be carried regularly and routinely.

Around this time, every year, thousands of Americans begin receiving an email for the “Stella Awards.”  Like many of these chain emails, it’s full of sensational and completely bogus information.  And like other email chains of this nature, most people will take it at face value (since it is usually forwarded from a friend) including members of the press.

For those lucky enough to not have received a copy of the Stella Awards, here’s a rundown.  The Stella Awards are supposed to be annual awards for the most frivolous or outlandish lawsuits filed in the U.S. for that year.  They are named for Stella Liebeck, the woman who sued McDonald’s in the hot coffee incident.

The truth is that these so-called awards aren’t actual awards. They aren’t annual.  They aren’t even actual cases!  These same crazy stories of a civil justice system run amuck are circulated every year and are all fabricated.  Do a search on any of these so-called awards and you will find every reputable fact-checking site has debunked these cases.

The icing on the cake is the use of Stella Liebeck’s name for these fictional awards.  Once again, tort reformers, big business (who are surely behind this misleading email chain) and pro-tort reformers have misrepresented the Liebeck case in order to discredit the justice system.  The Liebeck case was anything but frivolous and uncovered an entire culture within McDonald’s that put its patrons at risk.  Liebeck’s burns were so severe, she almost lost her life.  McDonald’s was assuredly aware of the risk associated with brewing their coffee at a temperature above safe human consumption and had even hired a full-time employee just to deal with coffee-burn victims.

So, what you have in the Stella Awards is a blatant piece of propaganda that has been spread from email to email for years.  The worst part of this is those same people who are passing this around are the very people civil justice system is set up to protect.

Unfortunately, the Stella Awards are just another piece in a propaganda machine that has actively sought to protect insurance and big business for more than a decade.  The misinformation that has been spread has lead to horrible, damaging tort reform and I see the effects it has on citizens every day.  The Stella Awards are just another way to condition Americans into believing there is a need for tort reform when it was never an issue to begin with.

The fact is the justice system works.  When a frivolous or pointless lawsuit is filed, it doesn’t make it very far.  It’s thrown out.  By misrepresenting cases and spreading lies, insurance companies and pro-tort reform politicians have been able to warp much of the public’s perception to better line up with their vision of the civil justice system.  And make no mistake, their vision for the civil justice system has nothing to do with protecting your rights.

I encourage you to do your own research.  One way you can do this is to watch the fantastic documentary, Hot Coffee.  It does a masterful job of laying out the REAL facts of the Liebeck case and goes on to show exactly how the public has been mislead in the tort reform debate.

If you receive a copy of the Stella Awards, I hope you will be confident in knowing the cases contained are either fake or gross misrepresentations of the facts.  Hopefully, you will be let your friend know the same and maybe one day, the truth will be as widely known as the lies contained in the Stella Awards.

A recent report conducted by the nonprofit consumer advocacy group, Public Citizen, has found what many of already knew – damage caps only serve to hurt the consumer and protect insurance and big business.

The report, “A Failed Experiment”, discovered that the 2003 Texas law that placed limits on settlement amounts in malpractice cases has done the opposite of what it is said to do.

Since 2003, Medicare spending and consumer healthcare costs have risen in Texas at a higher rate than the rest of the country.  In addition, the number of doctors in Texas hasn’t grown near the rate that was promised. Both of these results are what the law was supposedly enacted to avoid.

As somebody who witnesses the devastating effect this so-called tort reform law has daily, it is always good to see people and organizations that are willing to take the time to uncover the true facts surrounding the tort reform debate.  This is especially important during a time when conservative politicians, such as Rick Perry, are lining up to spread misinformation about these big business endorsed laws, despite the actual facts surrounding them.

Public Citizen’s report comes on the heels of the eye-opening documentary, Hot Coffee.  Hot Coffee does an amazing job of not only showing how tort reform has hurt citizens across the US, but also lays out the manipulative and deceitful tactics that were used to pass tort reform in the first place.  I really can’t recommend it enough.

If you or a loved one has been hurt by tort reform laws, leave comment and tell us about it.  Think tort reform laws are helpful? I would love to hear your reasons.

A disturbing scheme by insurance companies is killing victims’ chances of a fair settlement and it is something you MUST be aware of.  While it was my good friend and fellow attorney Ross Jurewitz of San Diego who brought the tactic up, I can assure you that this is not exclusive to California.

Basically, insurance adjusters are showing up to the homes of individuals who have been injured and offering them “X” amount to “settle” their claim on the spot.  In return, the victim must sign a waiver stating they will forgo any of their rights to legal action.

By approaching victims at their most vulnerable point, adjusters are able to offer disgustingly low amounts without any worry of ever being sued or required to pay a fair settlement.

For example, a single mother is rear-ended and injured while on her commute to work.  Because of her injuries, she is unable to go to work and gets behind on some of her bills.  Additionally, her vehicle is badly damaged and needs to be fixed.  It’s not difficult to see that she is in a tough position and some extra cash would go a long ways.

This is a perfect opportunity for the insurance adjuster’s scheme.  Preying on her vulnerability, the insurance company will approach her, many times coming to her home, and offer a check for an amount well below what she is owed.  All she has to do is sign a waiver saying she won’t seek additional payment or legal action.

Many times, the victim, not knowing better, and in an incredibly tough position, will take the quick money.  In reality, her settlement would likely be worth much, much more.

Not just a California thing, this manipulative way of doing business is used by various insurance adjusters across the country.  It’s a despicable way of doing business and, like many things, the best way to combat it is through education.

So, what do consumers need to know?

First of all, if you have been a wreck, do NOT sign ANYTHING until you have spoken to a lawyer.  This cannot be stressed enough.  Even if the insurance company isn’t offering one of these quick “settlements,” there is always a chance that what you are signing could be damaging to your case.

If the insurance company makes you an offer, you truly have nothing to lose by reviewing it with an attorney.  An experienced personal injury lawyer will either see that the offer is unfair and offer to represent you to get the settlement you deserve, or, if the offer is fair, they will let you know.

No matter what, just remember, the insurance company is not in the business of paying out quick, fair settlements.  If they are knocking on your door and offering you a check, you can bet that they are NOT looking out for your best interests.

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The McDonald’s Case.  Everyone’s familiar with it.  A woman spills coffee on herself while driving and sues McDonald’s for tens of millions of dollars because the coffee was hot.  Just another example of an out of control litigious society and a person looking for quick money. Right?

What would you say if you discovered you were wrong?  That the “facts” of the case were not only distorted but were used in a concerted effort by big business and their cronies to restrict your access to justice?

An eye-opening film does just that – and much much more.

Hot Coffee is a new documentary that successfully pulls back the veil of deceit that spawned the tort reform movement fooled many into believing it would help consumers.  This movement, spearheaded in Texas, has led to crippling damage caps and obstacles to justice.

As a trial lawyer and advocate for individuals’ rights, I have seen firsthand the effects of tort reform on our citizens.  The deceit and backroom dealings that created the campaign for tort reform that resulted in far reaching damage caps are shocking.

Hot Coffee covers a lot of ground during its running time and isn’t restricted just to the facts of the McDonald’s case.  It accurately lays out the tactics that have been used to not only place caps on damages, but how juries have been silenced, employees have lost their day in court and how corporations and their lobbyists have poured their time and money into brazen efforts to elect pro-reform judges.  And it does all this in an entertaining, thought-provoking way using real world case studies and interviews.

I could go in depth about the events and facts discussed in the film, but honestly, it would be impossible for me to make the impact that this film does.  When you see the faces and hear the stories firsthand of those who have seen their access to justice unfairly ripped from them you will understand.

Hot Coffee is currently being shown on HBO, HBO On Demand and HBO GO.  For those without access to HBO, you can sign up for updates on DVD availability by visiting the film’s official website – www.hotcoffeethemovie.com.

I would also suggest that you check out the Take Action tab on their website.  There you will find information on how you can fight to overturn the decades of attacks on YOUR civil justice system.

A recent article in the Washington Post discussed the epidemic of wrong site surgeries in our operating rooms.  The article pointed out the increase in reported incidents despite mandatory safeguards that were put in place since 2004. You will notice the use of the word reported since hospitals are NOT required to report wrong site mistakes.

As part of the discussion, the author points out the lack of legal action as a contributing factor to this increase.  Unfortunately, she doesn’t expand on this.   I’ll do this for her.

It is true, attorneys are hesitant to take these cases, and many medical malpractice cases in general.  The fact is, damage caps and tort reform have made it impossible for lawyers to pursue every legitimate case presented to them.  Trying a medical malpractice case is extremely time consuming and expensive.

These types of cases are usually taken on a contingency basis.  This means the law firm flips the bill for the multitude of medical records, expert witnesses and so on.  Attorneys only collect money if a settlement or favorable decision is met and this can take years.

With the current damage caps limiting the total amount of money a person can receive, this has forced attorneys into only accepting those catastrophic cases that are financially possible for the firm as well as the client.

This is an issue I struggle with on a daily basis.  It is by no means easy to reject the cases of victims that come to us daily.  Many have a legitimate claim against a medical professional, but damage caps and tort reform have made it impossible to represent them because they weren’t hurt enough. It is just simply impossible and financially reckless to spend the time and money to pursue a case that will only result in a recovery that does not benefit the client or firm.

Knowing this, it’s not surprising to see the article cite a study that says only one in three of these wrong site mistakes result in a medical malpractice case.  While sad and extremely frustrating to both attorneys and victims – this is the current atmosphere we live in.

In many ways, the legal system has been manipulated from a source of justice and protection for individuals to a system of protection for corporations and insurance companies.

If you read this and feel angry, you should be.  Absurdly low damage caps do nothing for you as an individual.  All these so-called reforms do are protect those who injure individuals and dictate what your injury is worth.

Next time a politician says these reforms are there to drive costs down and help consumers, call them out for it.  It’s a blatant lie spread to limit your access to justice and protect the deep pocket books of those who contribute to their campaigns.  Not only have healthcare costs continued to rise, despite tort reform and damage caps, but so have instances of medical negligence and malpractice.  Remember this next time you are in the polling booth.

Wanna Know More?

Check out the eye-opening documentary, Hot Coffee. This critically acclaimed film does an amazing job of laying out the facts surrounding so-called tort reform.

You can currently catch it on HBO through the end of September.

Don’t have HBO? Visit www.hotcoffeethemovie.com to pre-order the DVD and learn more about the filmmakers and how you can take action!

Today, in the Texas House of Representatives, another piece of legislation seeking to shield corporations and big business from accountability will be debated.  House Bill 274 will only serve to make it more difficult for families and small businesses to hold large corporations responsible for their reckless and dangerous actions, and make no mistake; it will pass if we do not make our voices heard.

The so-called “Loser’s Bill” seeks to intimidate families and small businesses owners by making it virtually financially impossible for them to take legal action against those corporations and polluters who have put profit over safety and caused death, injury or financial devastation to Texans.

This piece of legislation will require Texas to should the massive legal costs of going after multinational corporations and their huge insurance companies.  That’s right.  Families and small businesses – not corporations – will be asked to pay the bloated legal fees associated with litigating these very necessary cases.

Lobbyists are calling this bill “Loser’s Pay” because that sounds better than what Texas Watch is more accurately calling “Families Pay.”  The facts are this – under this bill, to take a corporation such as BP to trial, you will be required to foot the legal costs for yourself AND their team of high priced attorneys.  This means you may have to empty your life savings to try and hold those who have harmed you accountable, and if you don’t win big enough, you won’t even recoup the money you were forced to spend in pursuit of justice.  As Texas Watch puts it, “even if you win, you still lose.”

If we allow this bill to pass, corporations will have an enormous financial deterrent against legal action and will have successfully insulated them, yet again, from accountability.  At the same time, they will be further depriving folks like yourself from your right to legal action.

What should you do?

Learn more about HR 274.  Call your State Representatives.  Visit Texas Watch and sign the petition.  This will be another in a long line of blow against individuals’ access to the legal system if we do not say “enough is enough” and stand up to these corporations and their lobbyists.