By Mary Anne Pazanowski
A recent U.S. Supreme Court decision holding that Texas state-court judges weren’t proper defendants in a case challenging a state abortion law led a federal court to release two jurists from a suit seeking to invalidate a medical malpractice damages cap.
Medical malpractice victims whose awards stand to be severely curtailed due to Texas’s $250,000 limit on noneconomic damages in health-care liability cases want the U.S. District Court for the Western District of Texas to declare the cap invalid under federal constitutional law.
They asked the court to block two state-court judges, Amy Clark Meachum and Jan Soifer, from applying the cap in cases tried before them—a remedy that’s probably no longer available under the Supreme Court’s decision in Whole Woman’s Health v. Jackson, in which providers are fighting a law that bans abortions as early as six weeks into a pregnancy.
U.S. District Judge Lee Yeakel granted the plaintiffs’ request to remove Meachum and Soifer from the suit Dec. 21.
Noneconomic damages are awarded for injuries that are hard to quantify, such as pain and suffering, disfigurement, mutilation, embarrassment, and humiliation.
An ultimate win for the plaintiffs would be consequential and more than likely would be reviewed by the Supreme Court. If upheld on appeal, it could work to invalidate noneconomic damages caps in more than 20 states.
The order releasing the judges comes just a few weeks before a bench trial scheduled for Jan. 7 in the case.
At issue is a law that means medical malpractice plaintiffs in Texas can recover, at most, $250,000 in noneconomic injuries from a physician and up to $250,000 per health-care facility up to a maximum of $500,000.
That’s not much compared to the money awarded by juries in some cases. For example, a Texas appeals court affirmed the reduction of an $11 million noneconomic damages award to $250,000 in the case of a man whose lower arms and legs were amputated due to a doctor’s negligent treatment of a MSRA infection.
The plaintiffs must convince Yeakel to break new constitutional ground and hold that the preservation clause of the U.S. Constitution’s Seventh Amendment applies to the state.
The preservation clause says that the right to trial by jury in civil cases at common law shall be preserved. Common-law medical malpractice cases were tried to juries, and damages caps interfere with the right because juries set damages, according to the plaintiffs.
But the Seventh Amendment’s preservation clause has never been applied to the states, according to briefs filed by medical providers, Texas Attorney General Ken Paxton (R), and the Texas Hospital Association, which are defending the cap.
The Bill of Rights prohibits the federal government from interfering with certain legal rights. It doesn’t extend to the states, except to the extent those rights have been incorporated into the 14th Amendment.
Most rights listed in those first 10 amendments have been incorporated into the 14th Amendment. Thus, states can be sued under the due process clause for alleged violations.
But the Seventh Amendment’s right to a jury trial in civil cases is among the few exceptions, the Supreme Court has said.
The plaintiffs argued it’s time to correct that oversight, as the precedents rejecting the incorporation of Seventh Amendment rights are no longer good law. Those decisions “long predate the era of selective incorporation,” the nation’s top court acknowledged in McDonald v. City of Chicago.
In McDonald, the Supreme Court held that the Second Amendment’s right to bear arms is applicable to the states through the 14th Amendment. It emphasized that “rights that are ‘fundamental to the Nation’s scheme of ordered liberty’ or that are ‘deeply rooted in this Nation’s history and tradition’ are appropriately applied to the states,” the plaintiffs said.
There is little doubt the civil jury trial right would pass the test, the plaintiffs said. It’s fundamental, as well as essential to a fair trial, they said.
But the precedents refusing to apply the Seventh Amendment to the states are still on the books, the cap’s defenders argued in separate briefs. A different federal court in Texas rejected an earlier challenge to the state’s cap based on that precedent.
Paxton argued that Yeakel must dismiss the case because the court is bound by the Supreme Court’s prior decisions. The court’s later cases, including McDonald, haven’t repudiated its earlier rulings, he said.
The providers added that the framers never intended the Seventh Amendment to apply to the states. Texas’ cap doesn’t violate the Seventh Amendment in any event, they also said.
Applying the Seventh Amendment to the states would significantly alter states’ civil procedures, THA said.
The Supreme Court’s precedents are distinguishable, the plaintiffs said. A case from the 1930s, for example, involved the Seventh Amendment’s reexamination clause, not the preservation clause, in the context of a criminal double jeopardy claim.
The nation’s top court also said in 1969 that decisions rejecting the incorporation of Seventh Amendment rights into the 14th Amendment “represented an approach to basic constitutional rights which this Court’s recent decisions have rejected,” according to the plaintiffs’ trial brief.
Center for Constitutional Litigation PC; Hampton & King; Perdue & Clore LLP; Maloney Law Group PLLC; Brown, Christie & Green; Lyons & Lyons PC; Whitehurst, Harkness, Brees, Cheng, Alsaffar, Higginbotham & Jacob PLLC; Ross Law Group PLLC; Ryan Krebs, of Austin; Winckler & Harvey LLP; and McGehee, Chang, Landgraf, Feiler represent the patients.
The Texas Attorney General’s Office represents the state. Norton Rose Fulbright US LLP represents the Texas Hospital Association. Cooper & Scully PC represents the medical defendants.
The case is Winnett v. Frank, W.D. Tex., No. 20-cv-1155, order dismissing judicial defendants 12/21/21.
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