It’s Time to Reform Tort Reform

In the summer of 2008, Stephen DiLeo, his wife Cassy, and the couple’s two sons, Michael and Jonathan, went on a long-awaited vacation together, to the white sands and crystalline waters of Pensacola.

It had been a stressful few years for the Covington, Louisiana family. While being evacuated from an assisted-living home in the aftermath of Hurricane Katrina in 2005, Stephen’s mother had died of a heart attack. Shortly thereafter, the DiLeos had taken in his ailing father, a wheelchair-bound man whose caregiving demands were almost beyond the energies of Stephen and Cassy, even though both were former ICU nurses. Nevertheless, the 89-year-old lived with the DiLeos for three difficult years, until his death in July 2008, by which point it seemed like the family had more than earned a few days of rest and relaxation on Florida’s panhandle.

On August 4, the day before Stephen and Cassy’s 21st wedding anniversary, 16-year-old Jonathan suddenly began projectile-vomiting, and the family rushed him to a Pensacola ER. There had been no precipitating event, the DiLeos told doctors. In fact, the boy had had no unusual symptoms of late, other than a complaint of double vision, and that had been addressed by an optometrist, who prescribed glasses. Concerned, the Florida doctors suggested a CT scan of Jonathan’s head. It revealed a tumor the size of a ping-pong ball in the pineal region of the boy’s brain.

“We literally almost passed out,” Stephen remembers. The stunned family drove home through the night, stopping at Children’s Hospital in New Orleans, where the diagnosis was confirmed. Cassy likened it to being hit by a train. She quit her job that very day.

Neurosurgeons at Children’s Hospital told the DiLeos that while young Jon’s tumor was inoperable, chemotherapy might be effective. Indeed, 12 weeks into it, the mass had shrunk by 50 percent. Radiation would be needed next. After researching the procedures available, the DiLeos brought their son to Texas, and a hospital the family is not allowed to name.

Here, they met a neurosurgeon (whom they also cannot name) with a very different view of Jon’s condition. His belief, contrary to that of the Louisiana doctors, was that the tumor was indeed operable, especially now that it was smaller in size. In fact, he felt he could “potentially cure” the boy, Stephen remembers. There were risks, of course. Fluid might build up in Jon’s brain after the operation, for one. The surgeon assured the DiLeos that a shunt could be installed, however, if and when fluid build-up became a problem.

According to the DiLeos, the neurosurgeon expressed great confidence in his ability to remove the tumor and cure Jonathan, so the family consented to the surgery. A few days later the tumor was removed and a temporary drain for fluid placed. Four days after the operation, it appeared that fluid was no longer building up in the boy’s head, and so the temporary drain was removed, whereupon he was able to comprehend and respond to questions. Nineteen days after surgery, however, on the morning of December 1, there were ominous signs that fluid had again begun to build up in Jon’s brain. The teen had started having headaches and seizures—both signs of increased intracranial pressure—and his scalp had even begun to stretch visibly.

Nevertheless, neither a shunt nor a second temporary drain was ever installed, according to medical records. After a CT scan revealed an alarming increase in the boy’s intracranial fluid level, a radiation oncologist allegedly phoned Jon’s surgeon and informed him of this development, but the surgeon, apparently unfazed, took no action.

Around 1 p.m., Jon began having unbearable headaches that were unrelieved by medication. He no longer knew where he was, and the left side of his face began twitching. A series of seizures followed, and the boy became unresponsive, at which point he was transferred to the ICU. Jon’s surgeon did not come to see his patient there until around 5 p.m., and then only for a couple of minutes, according to the DiLeos.

Jon’s condition began to further deteriorate throughout the evening. The hospital placed emergency calls to his surgeon, but these went unanswered. Finally, around 11 p.m., the doctor did return to the hospital, and after seeing the results of a second CT scan, became convinced that the boy needed immediate surgery to install a shunt. At some point, the DiLeos remember asking him if he’d been in surgery during the five hours they’d tried to reach him that night. No, he said. He’d been at dinner with his family.

The surgeon began to operate on Jon, but his efforts came too late. At 3:06 a.m. on December 2, Jon was declared brain-dead. Two days later, he was taken off life-support.

“The agony of that, of watching your son suffer and die in full view of hospital staff…is unbelievable,” recalls Cassy. “The rest of the staff was jumping around trying to help, but without the response of the neurosurgeon, who was the only person who could operate and relieve the pressure on his head.” Almost immediately, Cassy began having nightmares and flashbacks, gallbladder problems, and gastrointestinal bleeding. Her periods began coming every two weeks and she developed facial tics. “Steve also developed a range of physical symptoms, especially headaches,” she says, before quickly adding that what she and her husband suffered was nothing compared to what Jon went through in his final hours.

Eventually, perhaps inevitably, the DiLeos began asking questions. Did their son’s tumor need to be removed, or might it have been shrunk further with radiation? Why had the surgeon neglected to install the shunt, or even a simple temporary drain? Had he truly believed at the outset that this would be “a beautiful procedure,” or had he instead chanced a risky surgery without giving the DiLeos all the facts about what could go wrong? And how could he have enjoyed a dinner with his family, knowing that a patient of his was writhing in agony?

And there was something else, too. During Jon’s treatment, his parents had taken to reading the neurosurgeon’s progress notes (as former nurses, Cassy says, “we are pretty familiar with charts”). Over and over, they read of the doctor’s plan to install a shunt if Jon exhibited certain symptoms, many of which he had certainly experienced during the last week of his life. But the doctor had neglected to follow his own plan. After their son’s death, the DiLeos tried to reread the surgeon’s notes in Jon’s chart, discovering to their astonishment that all of the notes prior to December 1—the day before Jon’s death—were gone.

There were too many mistakes, too much evidence of negligence and/or incompetence on the part of neurosurgeon, and too much suspicion that either he or someone at the hospital had tried to cover this all up. And so, even as the DiLeos knew it would never bring their son back, they decided to sue the doctor for malpractice. It wasn’t money they sought but justice, and they were confident that in a court of law, justice would prevail.

And perhaps it would have—if Jon’s doctor had committed malpractice in a different state.

---

“The way our system should be working, and the way it was designed by our founders to work, was this: on a case-by-case basis, judges and citizens would sit and hear evidence, and then weigh it based on the law,” says N. Alex Winslow, the executive director of Texas Watch, an Austin-based bipartisan consumer advocacy group. “And then they would make a decision whether someone was at fault or not, and if so, how much.”

Thus did malpractice cases work their way through Texas courts for the better part of 160 years, from statehood all the way up until the early 2000s, when supporters of tort reform began portraying the state as a “lawsuit mecca” and “judicial hellhole,” wherein “jackpot justice” reigned. Thanks to frivolous lawsuits and the lack of caps on punitive damages, so went the argument, high medical malpractice insurance premiums were forcing doctors to either leave the state or retire early. Hence, the shortage of physicians, particularly in rural areas. And among those who continued to practice, said supporters of tort reform, a fear of lawsuits was driving them to order multitudes of tests, many expensive and unnecessary, which meant higher healthcare costs for everyone.

Clearly it was time to rein in the lawyers, and in this cause the insurance companies joined forces with Texans for Lawsuit Reform, a lobbying group founded by four Houstonians: construction magnate Leo Linbeck Jr., homebuilder Richard Weekley, Richard Trabulsi, a corporate attorney (and now owner of the Richard’s liquor store chain), and Hugh Rice Kelly, Reliant Energy’s former general counsel. In 2003, in an astonishing series of victories, the TLR helped persuade the Texas Legislature to pass a bill capping non-economic damages for malpractice victims at $250,000, and $100,000 at certain public hospitals. Restrictions were also placed on contingency fees (in which lawyers are paid a percentage of what their client wins in court, if anything, rather than collect any money up front), and lawyers were prohibited from being reimbursed for expenses until their clients won—if they won. Tort reform advocates got almost everything they wanted from the legislature, and what they couldn’t get from lawmakers they got from the voters.

“Backers of tort reform knew that the state constitution—not to mention the federal constitution—was very clear that Texans have a right to…go to court and hold someone accountable by presenting evidence to a jury of your peers,” says Winslow. And so, that September, an amendment to the Texas Constitution known as Proposition 12 was put on the ballot. It was voted down in every major metropolitan area in the state, but the rural counties—convinced they would lose what few doctors they still had—voted in favor. By a razor-thin 1.2 percent margin, Prop 12 became law.

“Never have so many who needed so little gained so much,” said Craig Eiland, a former trial attorney turned Democratic state representative for Galveston, two years after Prop 12’s passage.

“When we look back, we know that they knew what they were doing was unconstitutional. That was why they had to amend the constitution in order to do it,” notes Alex Winslow with a bitter laugh.

As Louisianans, the DiLeos weren’t aware of the sweeping reforms in Texas’s civil justice system. All they knew is what they heard from the attorney they’d hired, who had spent 14 years as a neurosurgeon prior to her law career. It was clear to their lawyer, based on a review of the medical records, that Jon’s surgeon had been negligent. As she wrote in her blistering report, “While Jonathan was dying in front of his family, [his neurosurgeon] went home to have dinner with his family for five hours, as Jonathan irreversibly deteriorated. Jonathan was still awake and speaking at 5 p.m. Had [the surgeon] acted at or before this time, Jonathan’s life would have been saved. The only person involved in Jon’s care who could have saved his life decided to have dinner instead.” The DiLeos’ hired expert further wrote that in her professional opinion, the boy’s death was the direct result of the 10-hour delay between the time of Jon’s first CT scan on December 1 and the time the surgeon operated on him early the next morning, much of which was wasted waiting for a second CT scan she believed had been unnecessary.

The DiLeos seemed to be on their way to building a strong case against the doctor for negligence, but they had no idea what obstacles the Texas legal system had put in their path. For starters, Jon had been operated on in a public hospital, of which there are 132 in Texas and six in the Houston area, including some of the largest and best-known. That was important because in Texas, employees of state-run hospitals enjoy the same “sovereign immunity” as police officers, firemen, and other government workers, which is to say that they are almost impossible to sue.

“Under Section 101.106 of the Texas Civil Practice and Remedies Code, people who are hurt by state employees effectively cannot sue individual actors, so doctors are off the hook, regardless of what they do,” says Houston personal injury attorney Allan Brain, who was not involved in the DiLeo case. Immunity can be waived in certain instances, but only if the plaintiff proves negligence, something else that Prop 12 made more difficult. “In medical cases, [negligence] was formerly liberally construed to include misuse of a medical record,” says Brain. No longer. These days, if a doctor in Texas misreads a chart or fails to give you a dose of medicine or perform an operation that might have saved your life, it’s considered not negligence but an error of medical judgment. What’s the difference? You can’t sue a doctor for an error of medical judgment.

Brain remembers a case some years ago in which a physician at a state-run facility misread the results of a pathology test. The doctor read as negative what was instead an abnormal test that suggested cancer, and a treatable one, at least in its early stages. By the time the test was read correctly, however, the disease had become invasive.

“Today, that case would be immune from liability because the failure to follow up would not be a misuse of tangible physical property,” Brain says. “It would be a failure of medical judgment,” and thus immune to litigation.

At any point in the process, there is the option of mediation. Hospitals facing potential suits frequently make offers of settlements to wronged patients, calculating that even an amount far smaller than the $250,000 cap will be enough to make the case go away. Furthermore, at certain public hospitals, damages can be capped at $100,000, and in at least some cases, patients and their loved ones are still responsible for medical bills. In other words, the mediation settlement amounts to something like a discount on botched care, and one that the families are prevented by a gag order from speaking about.

Given the anti-plaintiff provisions that the DiLeos faced, as well as the sovereign immunity granted the doctor, Jon DiLeo would never get his day in court, and the doctor who they believed was responsible for his death would get off scot-free.

“The injustice done to my son is unbearable,” Cassy DiLeo says. “And then to not be given a voice for your child….This is the first time in my life I’ve really felt oppressed.”

“It’s really devastating for the families, and I wish I could tell you that they were in a unique situation,” says Alex Winslow of the DiLeos. “We hear from people weekly if not daily who have been victimized by a medical error or negligence, whether it be in a government facility, a private facility, or a nursing home. It’s entirely all too common. And these people found out that there’s really no method to hold anyone accountable. It’s really devastating.”

More than a decade after it was passed, supporters are still calling Prop 12 an unqualified success. In an editorial published in the Austin American-Statesman last year, Brooke Rollins of the Texas Public Policy Foundation, a conservative think tank, claimed that tort reform had not only halted but reversed the exodus of Texas doctors. She predicted that by the end of 2013, Texas would have nearly 60,000 physicians, almost double the number it had had 10 years earlier, and termed it “no coincidence that since 2003 Texas has also distinguished itself as the national leader in job growth.” Tort reform, Rollins wrote, “is not the only reason for the Texas Miracle, but it is a big part of it.”

The American Medical Association isn’t nearly so sanguine about Rollins’s numbers. According to them, in 2002 there were 221 doctors per 100,000 Texans; in 2011, the last year for which statistics are available, there were 245, an 11 percent increase. Nationally, the mean number went from 288 to 322, and from 417 to 454 in New York. With regard to the latter, New York experienced roughly the same percentage increase in its numbers as Texas over the past decade, which is surprising, since the state already had more than one-and-a-half times as many doctors as us, and, even more surprising—at least to some—has no cap on malpractice damages.

What about the claim that tort reform would bring down health costs once doctors cut down on all those unnecessary tests and insurers lowered their malpractice premiums? Well, in the years following tort reform’s passage, malpractice premiums did decrease around 46 percent, but those savings have not been passed on to patients, according to a 2011 study by the consumer group Public Citizen. And as for the claim that Prop 12 would usher in an era of lower healthcare costs, well, even tort reform’s biggest backers are distancing themselves from that one.

After a 2012 study demonstrated that Prop 12 had done nothing to reduce health expenditures, Jon Opelt, executive director of the Texas Alliance for Patient Access, denied that cost-cutting had ever been a stated aim. “We did not and we have not led lawmakers and voters astray,” said a man whose organization had donated $1.2 million to the Yes on 12 campaign in 2003, speaking to the Austin American-Statesman. Inconveniently for Opelt, the paper unearthed two campaign flyers from 2003, one of which promised “lower costs and more security in our health care system,” and another in which Governor Rick Perry claimed that Texans could “help make healthcare more affordable and accessible” by voting yes. (Opelt maintains that TAPA had nothing to do with the content of Yes on 12’s flyers.)

Ironically, says Texas Watch’s Alex Winslow, despite all the havoc Prop 12 has wreaked, the measure has accomplished precious few of its stated aims. “The cost of healthcare in Texas has gone up faster than the national average,” he says, “we’re ranked dead last in terms of quality of care according to the federal government, and access to doctors in underserved communities is still a huge problem.”

Still, Prop 12 has certainly accomplished one of its stated aims: there’s been a big decrease in the number of medical malpractice suits filed. A search of Harris County District Court records reveals that in 2002, the last full year before tort reform, 573 medical malpractice suits were filed in Houston. In 2013, there were 213. Winslow believes that a significant number of patients with meritorious cases simply don’t file them anymore.

“What the legislature and the Texas Supreme Court have done is to arbitrarily limit lawsuits,” he says. “It’s that arbitrariness that is so pernicious.” Reformers proudly trumpet the fact that the courts have succeeded in preventing cases without merit from going forward, but they’ve done so at the cost of cases with merit. “The reality is, before we started limiting meritorious cases, the cases that did not have merit were dealt with as they should be. They were thrown out.”

The only thing Prop 12 has really done, according to Winslow and others, is make it harder for the injured to hold wrongdoers accountable. “People like the DiLeos—and many, many others—have no recourse through the courts,” he says.

In December 2011, Dr. Christopher Duntsch was in the middle of performing surgery on a patient at the Baylor Regional Medical Center of Plano. The surgery was going badly—so badly that another surgeon also present in the operating room allegedly tried to pull the surgical instruments from Duntsch’s hand. The next month, another Duntsch surgery on another patient followed the same trajectory, arousing the ire of yet another surgeon present, who later reported that he’d been shocked by Duntsch’s amateurish technique. Subsequent lawsuits were filed by everyone from the surgeon’s childhood best friend, who wound up a quadriplegic after a surgery Duntsch had performed, allegedly following a night spent snorting cocaine, to the family of a Garland teacher who’d bled to death on the operating table after Duntsch reportedly sliced open her vertebral artery.

Baylor Plano, which is unaffiliated with Houston’s Baylor College of Medicine, quietly dismissed Duntsch in April 2012, though not before giving the surgeon a letter stating that the hospital had never taken any disciplinary action against him, even though it had once suspended him for 30 days. Duntsch used that letter to acquire positions at two more Dallas hospitals, where the botched surgeries continued. Before the Texas Medical Board finally stripped him of his medical license last December, Duntsch stood accused of being incompetent, addicted to drugs and/or alcohol, and a sociopath. One doctor even likened him to Hannibal Lecter in The Silence of the Lambs. 

Not surprisingly, several of Duntsch’s former patients have sued Baylor Plano in federal court, claiming that the hospital waited too long to act and concealed Duntsch’s wrongdoing, all in order to recoup the $600,000 salary advance they’d given him. But the suits have also challenged the constitutionality of Texas’s tort reform statutes, and that’s where things get interesting. Texas attorney general and gubernatorial candidate Greg Abbott—himself the recipient of a multimillion-dollar personal injury judgment after being hit by a falling tree limb while jogging in the 1980s—has intervened in the suits on Baylor Plano’s behalf. (Allan Brain believes that under current jurisprudence, Abbott’s own personal injury suit would have probably been thrown out on a summary judgment.)

Some have wondered about the timing of the $350,000 given to the Abbott campaign by former Houston Astros owner Drayton McLane, who is now the chairman of the board of the Baylor Scott & White hospital system, of which Baylor Plano is a member. McLane’s first installment, of $100,000, came the day after Duntsch’s license was suspended in June 2013; a second $100,000 contribution followed a week after a rash of lawsuits was filed against Baylor Plano. (McLane claims to have known nothing about the proceedings against Duntsch, and Abbott’s campaign says the donations had no bearing on his decision to intervene against the plaintiffs.)

In any event, the stakes are high in the case. Should the federal court ruling go against the plaintiffs, hospitals like Baylor Plano will no longer be responsible for their doctors’ actions. If the plaintiffs win, it could be the beginning of the end for tort reform. Furthermore, there are already a number of similar cases from various state courts percolating through the federal system right now, as Alex Winslow notes. Any one of them could one day lead to the overturning of Texas’s tort reform law on the grounds that it violates the Seventh Amendment’s guarantee of the right to trial by jury.

Some states have already overturned tort reform on their own. The supreme courts of both Georgia and Missouri have reversed laws passed by their legislatures (they had capped damages at $350,000). In each case, the court ruled that the caps were unconstitutional, robbing juries of their voices. Winslow does not expect the pro-business Supreme Court of Texas to follow suit, and if Greg Abbott is elected governor, there won’t be any winds of change blowing from the executive branch either. After all, roughly 20 percent of the donations to Abbott’s attorney general electoral campaigns came from tort reform supporters. (As for his gubernatorial opponent, Wendy Davis, prominent Houston trial attorney Steve Mostyn, for one, has donated millions to her campaign.)

---

Sleepy and lush, Covington is a picture-perfect town on the north shore of Lake Pontchartrain, just across the causeway from the hurly-burly of New Orleans. Tidy Victorian bungalows stand among majestic Spanish moss–draped live oaks on the town’s backstreets, which radiate outward from a spick-and-span, compact downtown. There, the streets are lined with boutiques, wine bars, nondenominational churches, and art galleries, all peeking out from behind 19th-century Louisiana storefronts, complete with iron railings and painted storm shutters. Buster’s is there too, a laid-back place where Cassy and Stephen DiLeo—over gumbo, seafood po-boys, and iced tea—reminisce about a life that held so much promise.

They speak of a boy with a 4.2 GPA who scored high on the ACT during his sophomore year of high school, who planned to run for class president during the junior year he never got to have. They speak of a boy who not only reined in bullies, but somehow convinced them to become friends with their former targets, and who was a huge help during his ailing grandfather’s last few years. Stephen recalls that in the early weeks of the last summer of his life, when not perusing the first trickle of what was sure to have been a deluge of college brochures sent his way, Jon could often be found holed up in his bedroom with a Rosetta Stone program, wrestling with the mysteries of ancient Greek. “Jon wanted to learn Greek, Hebrew, and Latin,” says Stephen. “On his own. In the summer. I was reading Superman comic books when I was his age.”

But ancient Greek?

“He wanted to read the New Testament in Greek,” his father, still astonished, remembers. Always a devoutly Christian family, the DiLeos fondly recall a 2005 mission trip they took with their church to Zimbabwe. Jon’s anticipation was so palpable, say his parents, you would have never guessed they were travelling to the world’s third-poorest country.

“He was so excited about life,” Stephen recalls. “As a matter of fact, one of his friends stated after his death that the guy who loved life the most died the earliest.”

If the family had lived in Texas in 2003, when the state was enacting its reforms, Stephen DiLeo would probably have supported Prop 12 as a good common-sense measure. Needless to say, the self-proclaimed “Dittohead / Limbaugh conservative” now finds himself at odds with much of the Republican punditocracy on this issue. “They hold Texas and Governor Perry up as having the perfect solution to frivolous lawsuits, and are as ignorant and misinformed on the matter as I was,” he says.

“I find that so many times, where folks are rock-ribbed Republicans…they voted for Proposition 12 at the time, thinking that it was as advertised, that it was going to crack down on frivolous lawsuits,” says Winslow. “And then they come to find out, ‘My God, they think that my case is frivolous. I lost my son, my daughter, my wife, my parent, and their lives were frivolous.’ And their lives are devastated.”

The $250,000 cap for non-economic damages measures a person by the size of his paycheck, many contend. An executive or doctor in mid-career can win millions more by suing for theoretical lost income, while those without incomes—retirees, stay-at-home parents, and kids like Jon—have no such option. (In very rare cases the $250,000 damages can be tripled, as when a patient’s suit involves a doctor and two hospitals.)

Of course, for the DiLeos, the point was not to win money but to hold a guilty surgeon accountable. “We just wanted a slap on his wrist,” says Stephen. “We just wanted something on his record.”

Their initial petition to the Texas Medical Board was denied. They appealed and lost. They appealed again and lost a second time, the board having concluded that Jon’s death “was related to factors outside [the doctor’s ] control.”

Meanwhile, Jon’s surgeon is still performing surgeries, in all likelihood, his patients and their families unaware of the pain and suffering he once visited upon another patient and family. Jon’s tragic death has in no way left a mark on the man’s reputation, which is not to say that Jon hasn’t made his mark in other ways.

On the DiLeos’ Zimbabwe trip, the boy saw firsthand the deprivation faced by Africa’s orphans during the brief, difficult, and painful existence that comes with living in a country with the shortest life expectancy on earth. At an orphanage, Jon saw children his age and younger struggling daily to keep a small garden alive by lugging heavy, back-breaking buckets of water from a distant well. Stephen says his son was “on fire” with a desire to help the poor children of Zimbabwe, and that that fire kept burning even after the DiLeos returned to Louisiana.

When he fell ill, Jon, like many other very sick children, was put in touch with the Make-A-Wish Foundation. In the end, he narrowed his wishes down to two: a tour of his hero C.S. Lewis’s London, or an irrigation system for the orphanage he had visited.

It was just a year after his death that water from the irrigation system began to slowly flow for the first time through 20 acres of farmland at the orphanage. And Jon was a wellspring of another kind too. A charity—Jonathan’s Impact—was established in his memory, and donations regularly generate $2,000 a month for Zimbabwean orphans, a huge sum in a country where the per-capita income is $50 a month.

Jon DiLeo’s life may have been deemed frivolous by the Texas courts, but the boy’s afterlife has been anything but.