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Texas Divorce and Prenuptial Agreement

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Malpractice Caps Hurt Families with Special Needs Children

In 2011, HBO distributed a documentary entitled Hot Coffee, a film that looked at tort reform efforts in the United States in the past 10-20 years. The film details several examples of Americans that the issue affects, but one in particular is relevant for couples with special needs children. We have mentioned in the past the difficulties these families face, noting how the time demands and stresses of caring for special needs children lead to spouses in such a situation having a higher-than-average divorce rate. What happened to the Gourley family from Nebraska shows what implications there may be for others.

Mike and Lisa Gourley had twin boys 17 years ago. One of their boys, Colin, was born with cerebral palsy due to medical malpractice. The Gourleys sued the doctor who delivered Colin (the doctor had faced multiple complaints and disciplinary actions in the past) and the healthcare providers involved. After battling the defendants in court for seven years, the case finally went to trial, where a jury found in favor of the Gourleys. The jury awarded them $5.6 million for Colin’s medical expenses.

Nebraska, however, had instituted a cap on medical malpractice lawsuits. The Gourleys appealed the cap, and the trial judge found the cap unconstitutional, but then the defendants appealed that decision, and the Nebraska Supreme Court upheld the cap. The cap eliminated 80 percent of the Gourleys’ award, reducing it to $1.2 million. The estimated future medical expenses for Colin are $12.6 million.

Couples with special needs children are well aware of the money it takes to provide medical care and rehabilitation for their kids. The expenses drive many families to the brink of bankruptcy. The Gourleys faced a $10 million shortfall between what their son needed and what they could get under Nebraskan tort reform. Mike Gourley had lost his job, and the family was unable to find a medical insurer willing to cover Colin’s pre-existing condition. They ultimately had to put Colin on Medicaid, which simply shifted the burden from the parties responsible for his condition to the taxpayers.

Widespread tort reform could similarly impact families with special needs children in Texas and throughout the country. When negligence leads to disability for a child, tort reform caps the support the child’s family can receive, but it does nothing to lower the actual costs that the family faces. Families with special needs children will have to look elsewhere for their medical expenses – their own pockets, their insurers or taxpayers.

Have you gone through a divorce where a special needs child was involved? What financial advice do you have for other couples in the same situation?

John K. Grubb & Associates, P.C. – Houston divorce lawyers

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