A Cow, a Car Crash and the Absurdity of Tort Reform in Texas

[TexasTowelie]

Tobias Akerboom via Flicker

One night in August 2011, a half dozen cows escaped their pasture and wandered onto a semi-rural stretch of road in Amarillo. The driver of an approaching pickup slamed on the brakes, but not quite soon enough to keep the truck from entering a terrifying barrel roll. Bobby Tunnell, the front-seat passenger and the driver's father, suffered gruesome injuries to his head, spine and torso. He was pulled from the truck shortly before it exploded.

Almost five years and $700,000 in medical bills later, Tunnell is in the midst of a legal fight with the cows' owner, which is taking place in Dallas County for various reasons but mainly because his attorney worries about the average Amarilloan's bias against trial lawyers. Tunnell claims the cows' owner, Richard K. Archer, negligently allowed his cattle to wander into the road and thus is liable for damages. Archer disagrees, partially because he says he took reasonable precautions (i.e. building and maintaining an electrified fence) to keep his cows on his property but mostly because he's a retired doctor, and Texas' 2003 tort reform law makes it damn near impossible to successfully sue doctors. Specifically, Archer argues that the case should be dismissed because Tunnell didn't present an expert report with the case within 120 days of filing the lawsuit, as is required in medical malpractice claims.

From the perspective of the fair and decent administration of justice, the latter argument put forth by Archer is absurd. Even the architect of Archer's legal strategy, Amarillo attorney Philip Russ, agrees. "I think it's a stretch to get to that point." But while he acknowledges that such an argument "may not be fair," Russ contends that he's merely applying the law as the Texas Supreme Court has decreed it should be applied.

Russ leans on handful of decisions handed down by the high court in recent years. Two involve slip-and-fall claims that, because they occurred at health care facilities and not say, a Jack in the Box, were deemed "health care liability claims" and not simple negligence cases. A lawsuit against a nursing home suffered a similar fate on almost identical grounds. More recently, in a 2012 decision centered on a psychiatric technician who sued the Houston mental hospital where he worked after being injured during a patient outburst, the court ruled that a claim "need not be directly related to the provision of health care" for it to fall under the 2003 tort reform law.

Read more: http://blogs.dallasobserver.com/unfairpark/2015/03/a_cow_a_car_crash_and_the_absurdity_of_tort_reform_in_texas.php