Damages Of Injured People Will Be Harder to Prove Under New Law

dreamstime_xs_4915045-300x214Cost Of Getting To Trial Should Be Affordable

In a personal injury trial, the plaintiff has to prove his or her damages. If the defendant challenges this evidence, the judge rules on its admissibility. The jury then listens to both sides and decides liability and damages.

The system is designed to provide an efficient evidence-gathering process for both sides. As an injury lawyer, I am concerned about a proposed law, House Bill 2301, that could have major repercussions on the civil justice system and skew the scales of justice in favor of defendants.

This bill is designed to make the streamlined procedure to prove routine medical records and bills more difficult and expensive for injured persons.

Before trial, the plaintiff submits evidence of the necessity and cost of medical services to treat his injuries. This is usually done by an affidavit signed by his doctor or custodian of medical records. Unless the defendant refutes the need for medical treatment or the fair cost of the amount charged, the affidavit is deemed to be sufficient evidence for the jury to consider damages.

The present system works. As we say here in Texas, if it ain’t broke, don’t fix it.

Draconian Effects of New Law

The proposed law creates serious hurdles for the injured plaintiff and resulting problems for the defendant. It should be defeated for many reasons:

  1. The counter-affidavit could be signed by the at-fault car driver or his attorney who have no medical training and can say anything. Their use will become rampant and obstructionist.
  2. As a result, doctors will have to testify to matters already contained in their written documents by testifying live for several hours in court or in a videotaped deposition. Obviously arranging and paying for this expert testimony will be difficult and expensive for both sides. Doctors may get frustrated and refuse to provide medical care for injured people. Trials will be longer.
  3. The bill would remove the long-held presumption of the necessity of medical treatment and reasonableness of medical bills.
  4. It does not state who will decide what a reasonable medical cost is, an issue hotly disputed these days. If our U.S. lawmakers can’t agree on what a reasonable charge is, what standards will a Texas judge use to decide if a hospital charging $1 for aspirin or $1,500 for a CT scan is reasonable?
  5. These changes will create more testimony, confusion and error and lead to more appeals and expense for both sides.
  6. The bill throws an additional hurdle in the path of plaintiffs by requiring that these affidavits be submitted much sooner. They would have to be filed on the earlier of either (1) 60 days (instead of 30 days now) before the day trial is scheduled or (2) the date that the plaintiff is required to designate his expert witnesses, often much earlier than that. These revised deadlines will lead to trial delays and waste valuable judicial resources as attorneys have to track down busy doctors to obtain this crucial evidence in an ever shorter time frame.

The bill would amend Section 18.001 of the Civil Practice and Remedies Code enacted in 1985 to speed up trials and make them more cost-effective.

The bill is scheduled for a hearing tomorrow before the House Judiciary & Civil Jurisprudence Committee. I hope that members of the committee vote against this poorly conceived legislation.

Contact Information