Stories of Texas Tort Reform

No Justice, No Accountability

Jonathan DiLeo

Jonathan DiLeo was the sixteen-year-old son of Stephen and Cassy DiLeo from Louisiana.  During a family vacation in Pensacola, Florida, he suddenly began projectile vomiting and was rushed to an emergency room.  A CT scan of Jonathan’s head revealed a ping-pong ball sized tumor in his brain.   The stricken family drove all night to Children’s Hospital in New Orleans where the diagnosis was confirmed.  The tumor was inoperable, but the neurosurgeon thought chemotherapy might be effective.  After twelve weeks the tumor had shrunk by 50%.  Radiation was the next step and after researching the procedures available, the DiLeos took Jonathan to a hospital in Texas which they are not allowed to name.  A neurosurgeon there, also to remain unnamed, contrary to the Louisiana doctor, thought the tumor was operable and he could “potentially cure” the boy.  One of the risks was that fluid might build up in his brain, but the surgeon assured them he could install a shunt if fluid became a problem.  They agreed to the surgery and initially all went well, and a temporary drain was even removed because fluid was no longer building up.  But 19 days after surgery Jonathan had started having headaches and seizures, signs of fluid buildup and increased intracranial pressure.  The surgeon was notified, but took no action.  Hours later the boy became unresponsive and was transferred to ICU.  The surgeon did not see him for another five hours, and only for a few minutes.  Jonathan’s condition continued to deteriorate during the evening and the hospital placed emergency calls to the surgeon with no response.  When he finally returned around 11 that night, the surgeon declared the boy needed immediate surgery to install a shunt and began the operation.  But it was too late.  At 3 a.m. Jonathan was declared brain dead and was taken off life support 2 days later.

With too many mistakes and too much evidence of negligence or incompetence on the part of the neurosurgeon—he had been at dinner with his family during the five hours he was unreachable—the DiLeos decided to sue for malpractice.  The opinion of two expert witnesses was that Jonathan’s life would have been saved had the surgeon acted when problems were first detected.  But, because of the provisions of the Texas tort reforms, Jon DiLeo, and his parents, would never get their day in court, and the doctor responsible would never be held accountable.  He is still practicing.



Alvin Berry

73, retired, and in pretty good health, Alvin Berry had been having kidney stones.  A regular check-up found his prostate-specific antigen score was elevated.  The family doctor sent him to a urologist, who told him not to worry, kidney stones could elevate the PSA.  Five months later, Alvin still had kidney stones and a PSA check showed it was up from 12.6 to 86.  The urologist again told him not to worry.  But Alvin did worry, and had his PSA checked again two months later.  It was 166.  The urologist “got all excited” and immediately ordered a biopsy.  Alvin had prostate cancer that had spread to his bones in 20 places.  The doctor put him on daily medication and a $4,000 injection three times a year.  Alvin did have insurance, so money wasn’t an issue, but he didn’t want his wife to be left alone on the ranch in the country, so they sold it and moved to town.  Alvin felt like his final years had been stolen from him and was angry at the “I’m right” doctor who had not given him the opportunity of making decision for his own life.  He decided to sue to keep the arrogant doctor from being so dismissive of anyone else.  He met with lawyer Kelly Reddell and learned the sad truth: Alvin had been the victim of malpractice, but his case would take up to two years to litigate, and if he won, he would take home substantially less than the cap of $250,000 set by Texas tort reform.

“Like a lot of lawyers in Texas, Kelly had been turning down plenty of once-good cases because the numbers just didn’t add up. She worked on a contingency basis, her fee usually around 40 percent of the award, which would amount to about $100,000. She also fronted all the expenses of the case: up to $5,000 a day for expert witnesses, money for travel, court costs. If this case worked like an average malpractice case, it would cost somewhere around $50,000 to get to trial and another $25,000 for the trial itself. That would leave Alvin about $75,000 after attorneys’ fees and expenses; other clients, with more-complicated cases, had recovered even less. And with the damages capped, there was little to no incentive for insurance companies to settle.”

Alvin Berry had voted for Prop. 12.  He felt utterly betrayed.  “I feel the whole thing had been misrepresented.  We’d voted on something, and we really didn’t know what the facts were.”


Blocked at the Courthouse Door

Sylvia Ann Fuller

Retired 68-year-old widow Sylvia Ann Fuller was enjoying a picnic with her children and grandchildren, the first time they had all been together in two years.  Sylvia started feeling ill toward the end of the day, and at home, she vomited all night.  By morning, she was frightened and called her daughter Karen who drove 50 miles from her home and took Sylvia to a quiet emergency room.  Through the workup, which included two EKGs, Sylvia could not stop vomiting, even with the help of medication.  The doctor diagnosed food poisoning from the potato salad at the picnic, even though Karen noted that no one else who had eaten it was ill.  The doctor gave her morphine to help her rest.  It wasn’t but a short while when nurses told Karen she could take her mother home.  Sylvia was barely conscious, but the nurses said they would help get her to the car.  Sylvia chatted a little during the ride, and at home told Karen she’d be fine, she just wanted to sleep.  Karen called her mother when she got back to her own home, but there was no answer.  After a night with no response, Karen drove back to her mother’s house and found Sylvia collapsed on the floor where she had been for nine hours, too sick to reach the phone.  As soon as Karen helped her mother up, thick, grainy blood started pouring out of her nose and mouth.  Sylvia died before the paramedics could arrive.

Karen and her brother David began an investigation because so many things did not seem right about the visit to the emergency room.  They hired a private pathologist to go over the medical records which showed Sylvia’s cardiac enzymes were irregular, (usually a reason for a hospital stay), two EKGs showed an irregular heart rate.  No one mentioned either finding to Karen or Sylvia.  The doctor’s written notes suggested the irregular heartbeat was a side effect of digitalis—a drug Sylvia wasn’t taking.  There were too many inconsistencies and errors and when they discovered the pathologist who conducted the autopsy for the hospital has a checkered history, (including previously practicing without a Texas medical license), they began looking for a lawyer. They did not want what had happened to their mother to happen to anyone else.  The son commented, “If the emergency room had been very crowded and they had been overwhelmed, I could even forgive them. But she was the only patient in there.”

“The first lawyer they saw explained the realities: The facts of the case looked promising, but because their mother was retired, they would have a hard time getting any lawyer to take the case. Anyone who didn’t work—the elderly, homemakers, or children—was looking at a cap on noneconomic damages of $250,000. Trying such cases was simply not cost-effective for the lawyer or the client. (“It’s an assault on those who are the most vulnerable,” one plaintiff’s attorney told me. “It’s almost legal malpractice to take those cases.”)

David contacted about fifteen lawyers and was turned down by all of them. One letter explained why: “Unfortunately, many of your legal rights have been taken away by state laws proposed and lobbied for by insurance, HMO, and corporate interests,”