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

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.

But it was the outcome in one of Russ' own cases that he says prompted him to pursue the strategy on behalf of Tunnell. As a plaintiff's attorney, he filed suit on behalf of an Alzheimer's patient who repeatedly escaped from his nursing home via a door with a broken lock that the facility nevertheless failed to fix. The final time the man wandered off, he caught pneumonia after spending a frigid night outdoors. Russ says his case against the nursing home was tossed out because of provisions in the tort-reform law.

Attorney Dean Boyd, who represents Tunnell, calls Russ' argument "baloney ... an argument that appears to be truthful but is in fact false; it sounds like it's OK, except it's crazy."

Boyd steers discussion about the case away from discussions of precisely how stupid Texas' reform law (or as he prefers to call it, "screw the consumer reform") is, preferring to shift the focus back to his client, a hard-working everyman whose life has been dramatically changed because Archer's cows were roaming loose. Tunnell's right hand is "withered, shriveled and grotesque," Boyd says. He has a a one-and-a-half foot scar on his back from where doctors placed two rods in his spine. His head is permanently jutted forward because of injuries to his neck. He's drowning in medical bills. And now a cynical lawyer is blocking his path to justice by effectively asserting that he's not entitled to damages because doctors are special.

A hearing on Archer's motion to dismiss the case is scheduled for April 10 in the courtroom of state District Judge Emily Tobolowsky. Whatever she decides, it's doubtful she'll have the final say. If Russ loses, he's vowed to immediately appeal.

Send your story tips to the author, Eric Nicholson.

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