Friday, February 13, 2015


Critics of lawyers and proponents of tort reform have constantly decried frivolous lawsuits.  They cite as an example of a frivolous lawsuit the lady in California who had her legs and lower part of her body scalded by superheated coffee sold by McDonald’s.  Those who rant about this situation as a frivolous lawsuit fail always to disclose the fact the water was heated to about 3-4 times what is necessary to brew coffee because McDonald’s discovered that by super-heating they could save a few pennies on buying coffee grounds.

The hypocrisy in tort reform about frivolous lawsuits is that they ignore frivolous defenses.  The people of Texas were sold a bill of goods when they were told that by limiting recovery on medical malpractice claims they would lower their doctor bills.  It hasn’t happened. 

Neither have people been informed of the many impediments placed on securing a jury trial against a medical practitioner or provider.  Some have reached the point of being just plain silly.

The medical malpractice laws passed by the Legislature have included a provision that before you are able to sue a doctor, hospital or other provider of medical services, you must obtain an affidavit from a practitioner in the same field certifying that the medical misconduct complained of fails to meet the standard of care for medical services.  Some medical providers are now trying to use this dodge in what I consider an absolutely frivolous defense. 

A recent case filed in Jefferson County sued a hospital because a pastor’s wife who was visiting the hospital to call on sick parishioners slipped and fell on food dropped on the floor near a space rented from the hospital to provide food service.  The rented space and the business operating there had absolutely nothing to do with medical care.  Two witnesses who had observed the substance on the floor had called and urged housekeeping to clean it up before someone had an accident.  

Unfortunately, the lady who was visiting the hospital did slip and fall and had over $30,000 worth of medical bills.  She is now left with the bills and a bad back.  The hospital, in response to the lawsuit, claimed the lady’s case should be dismissed on the grounds she hadn’t provided an affidavit saying that maintaining a clean floor in the hospital space rented for profit did not meet the standard of care.  Unfortunately, no affidavit was filed on behalf of the lady because the lady couldn’t find a doctor who also had experience with janitorial services in a hospital. 

The silliness goes even further.  

Recently, a doctor who also raised cattle was negligent in allowing his livestock to roam free and not be adequately restrained or penned up.  A motorist collided with the doctor’s cow and now the doctor wants to have the case dismissed because the doctor claims that while attending his medical duties he didn’t have time to keep his cow in the pen.  Texas rules of procedure provide that frivolous pleadings can be sanctioned, and the court can award attorney’s fees or impose other penalties for those offering frivolous matters to the court.  

You can bet the doctor who has imposed this silly defense will not be sanctioned.  In addition, I wouldn’t take bets on whether or not the current Supreme Court of Texas will allow such a stupid defense to stand.

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