Texas governor and presidential hopeful, Rick Perry, thinks tort reform laws should change to include the English rule. The Washington Times recently reported that Perry believes the loser of a lawsuit should pay the defense costs for the winner. On the surface, Perry’s argument makes sense. Only those who are sure they have been wronged will file lawsuits.
What that argument overlooks, however, is the difficulty of proving medical malpractice when it happens. Even in cases in which doctors have clearly made medical mistakes, it can be hard to convince a jury. In the worst-case scenario, a wronged family might end up paying for a negligent doctor’s defense costs.
Parents of Deceased Daughter Face Consequences
One clear example of unfairness in the English rule lies in the case of 19-year-old Krystal Mohr. The local newspaper, the Sacramento Bee, told the story of how she died of a brain hemorrhage on September 4, 2006, after doctors delayed getting her proper treatment. Krystal’s father, Richard, brought her to Mercy Hospital of Folsom, CA, owned by Catholic Healthcare West, at 12:16 a.m. on September 3. Trial briefs show that no neurologist was available at Mercy, so Dr. Ken Johnson called Krystal’s health insurer, Kaiser, to find out where to send her. She did not arrive for treatment at Kaiser Morse Hospital until 4:40 a.m. By then, it was too late. Krystal never recovered, dying the next day. In the absence of insurance, Krystal might have made it to a closer hospital that could have cared for her more quickly.
Richard and wife Batrice Mohr sued Dr. Johnson and Catholic Healthcare West over their daughter’s death. Not only did they lose the case, but the court ordered them to pay the doctor $15,626 in court fees. By law, Dr. Johnson could have received $88,894.32 for defense costs, with $73,000 of that amount covering the cost of a medical expert. The Mohrs’ lawyer convinced the judge to drop that expert witness fee and certain other costs. In California, the defense can recover expert witness fees if it first makes a “reasonable” offer of settlement. While the defense did offer to waive reimbursement of defense costs if the Mohrs agreed to drop their case, the judge did not see that as a reasonable offer.
Both Catholic Healthcare West and Kaiser settled with the Mohrs. The hospital paid $35,000, and Kaiser paid $30,000 through an arbitration process. Only Dr. Johnson escaped without harm. Medical experts for both sides argued their positions. In the end, as always, it came down to which side the jury chose to believe.
Tort Reform Unfair
Now the Mohrs must decide if they should give up their right to appeal in exchange for Dr. Johnson waiving his right to reimbursement of the defense costs? Otherwise, the couple risks losing again and paying even more in court fees. Batrice Mohr sees this law as unfair and unkind and asks, “What kind of system allows this to even be contemplated? Is this really acceptable in our society?”
If a doctor’s negligence may have caused you or a loved one to suffer an injury, or if your loved one died as a result of negligence, contact our office before the time limit for filing a suit runs out. Our staff of experienced attorneys will meet with you at no cost and review your case to help you decide if a malpractice lawsuit is the right course of action.