COURT OF APPEALS REVERSES JUDGE LAURA BETANCOURT ON THE SIMPLEST QUESTION OF LAW

This will be a new feature so people can better know the judges.  Not all reversals will be noted, only those which show a clear misunderstanding of the law.  Many times, while an appeal may have merit, the law can possibly go both ways.  That is not the kind of case wherein you call out the judge.

Texas has a medical liability act law which forces the plaintiff to hire an expert to explain in an affidavit the negligence and breach of the standard of care.  I basically oppose this law because it does not first allow the plaintiff to state a primary facie cause of action which is then challenged by the defendant which would then trigger counter affidavits.  

For example, if the plaintiff alleges, he went in to have his appendix removed, but the doctor removed his foot instead, do you really need another doctor to say that is medical malpractice?  No, but the law says yes. This is why I do not like the medical liability law.  And for the record, the appendix foot case is real.

BUT IN THIS CASE, BASED ON THE COURT OF APPEALS OPINION

The plaintiff simply said he walked into the rehab facility and fell and cracked a rib.  He does not claim an obstacle.  He does not claim anything on the floor.  He was a stroke victim, and chose to enter the facility without help, but then blamed the facility for falling.

Even without the medial liability act requirement of an affidavit to show negligence, there was no case.

But judge Betancourt bought the argument no affidavit was required because it was a fall case, not a slip and fall case.  

This is the type of case why those who want tort reform win the argument.  There was no case, but Judge Betancourt forced the insurance company to continue to pay for the defense and this is the problem.

Well now the case is done, and the plaintiff has been ordered to pay attorney's fees.

Not in this case, because there was never any case, if as a plaintiff's attorney you are going to proceed without an affidavit because you cannot afford to pay an expert, you need to file a constitutional challenge to the rule.  But the case has to be right, such as removing a man's foot, instead of his appendix. 

Here is the form, and it is filed with a cover. Email it to the email provided and the Texas AG has 30 days to say if they will defend the law or allow the court to proceed without insight from the AG.