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Supreme Court Alters Statute Against Patients

On January 9, 2009, the Texas Supreme Court altered a statute to the disadvantage of patients seeking justice from doctors who have committed malpractice. In the case of Badiga v. Lopez, the Court ruled that a doctor can appeal a certain pre-trial ruling even though the medical malpractice statute says that no such appeal can be taken.

Victims of medical malpractice have very serious procedural hurdles to overcome when they seek to hold doctors responsible for their negligence. One requirement imposed only on these cases by statue is that patients must hire another doctor to write a report against the one who committed the malpractice, and then that report must be filed before a specific deadline. According to the statute, the trial court is allowed to grant one thirty-day extension to the deadline, and the doctor who was sued is prohibited by statute from appealing the decision to grant the extension.

In a prior decision, Ogletree v. Matthews, 262 S.W.3d 316, 321 (Tex. 2007), the Supreme Court enforced that statutory provision when the report was held to be deficient. That decision is in accordance with the statute, and with reality: appellate courts take an extremely strict approach when evaluating reports and they rule that reports are "deficient" alarmingly often.

The statute makes no distinction between extensions given because the trial court believes the report might be deficient, and those given when no report was filed. Under the statute, the law prohibits a pre-trial appeal by the doctor of the trial court's decision to grant the extension.

Or at least that was the law. Now, the Supreme Court has created a new distinction - that is not contained in the statute - to allow doctors to appeal the trial court's pre-trial decision, thus causing delay and added expense to malpractice victims. Even Justice Scott Brister, one of the most conservative members of the Supreme Court, disagreed with the ruling. "In the plainest of terms, this statute applies to all extensions - right or wrong, deficient report or no report. As the Court reads into this jurisdictional statute a distinction that is not there, I respectfully dissent."

Decisions like this one simply make the hurdles even higher for malpractice victims seeking to have their cases decided by a jury. The only redress for this system appears to be in the Texas Legislature.

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