Could you please help us non lawyers understand why someone's employer is responsible for the crimes of the employee? Further, how is this related to tort reform? Isn't this a criminal case? Or is it about who has the deep pockets?

My understanding is that trial attorneys in Texas are up in arms because there is a bill that will force them to disclose to their clients whether or not they carry malpractice. http://www.setexasrecord.com/arguments/212738-lawyers-insure-and-tell

Their concern is that if people know they have insurance, people will sue them.

There are several reasons an employer can be liable for the actions of its employee. I don't know the facts of the case enough to speculate on what the theory of recovery is. It could be negligent hiring, negligent supervision, or something called "respondeat superior." Employers are often liable for the conduct of their employees, but usually only when the employee is acting within his job duties. The employer can certainly make an argument that the employee wasn't doing that. Interestingly enough, most (if not all) insurance policies won't cover an incident like this because it was intentional.

What's so disturbing about this case is the ruling that the plaintiff needs to hire (at great cost) a medical expert to testify that beating patients isn't in the standard of care.

As for the article? The quote is telling:

"Cannot afford insurance? Too bad. Maybe you shouldn't be practicing law in the first place."

Try replacing the word law with the word medicine and see how fair that sounds.

The SE record is an anti-lawyer, anti-consumer front for the Chamber of Commerce... it's just thinly disguised propaganda.

I honestly don't have a strong opinion one way or the other on forcing lawyers to disclose whether they have malpractice insurance.

Kraft's characterization of the opinion is incorrect.

http://5thcoa.courts.state.tx.us/cgi-bin/as_web.exe?c05topin.ask+D+730014

The issue on which expert testimony is required is what the standard of care is of oversight of employees. Given that the low-level caretaker violated Educare's policies by beating a resident, expert testimony is needed to demonstrate that Educare was negligent in failing to prevent an employee from violating its policies. That would be true even if no tort reform had passed: the only effect of tort reform is that the evidence has to be introduced earlier in the process before lots of money is wasted on attorneys' fees.

The moral is that Justinian should read court opinions rather than simply parrot a plaintiffs' attorney's fictional version of what the court said.

Justinian also fails to note that "respondeat superior" only applies to employees acting in the scope of their duty.

"The SE record is ... just thinly disguised propaganda."

A remarkably self-unaware statement from someone who doesn't even disguise his propaganda. At least the SE Record is accurate.

Ted: Justinian also fails to note that "respondeat superior" only applies to employees acting in the scope of their duty.

Me: "Employers are often liable for the conduct of their employees, but usually only when the employee is acting within his job duties. The employer can certainly make an argument that the employee wasn't doing that."

Do you even read what I write before you attack me?

You might want to read the opinion again, too. It stated that the plaintiffs needed a doctor, and not "just" a nurse to testify on causation. You're clearly wrong when you stated "That would be true even if no tort reform had passed." The opinion specifically explains that the nurse's opinion is insufficient to prove causation under Tex. Civ. Prac. & Rem. Code Ann. § 74.351(a). So even a report from a security expert would be insufficient to prove that the facility negligently supervised its employees unless the expert was also an M.D.

The opinion you purportedly read states:

A person qualifies as an expert witness on the issue of the
causal relationship between the alleged departure from the accepted standards of care and the injury, harm, or damages claimed “only if the person is a physician and is otherwise qualified to render opinions on that causal relationship”

Funny you mention parrots. There's a very large green parrot - probably an escaped pet - living in some bushes near my home. I was going to try and catch him this weekend. If I do, I'll name him Ted and teach him your stock phrases. If I'm successful, I bet the SE Record will hire him.

Again, you misread the opinion. The plaintiff tried to argue that the only "causation" she needed to prove was that the attack caused the injuries. As you yourself note, that's not sufficient to prove causation, and the court simply came to the same conclusion.

I assume that since you wasted your comment making a personal attack on me, you have no defense of your original false statement that this decision was a consequence of tort reform.

I also fail to see why "Texas: No better place to abuse the mentally disabled" isn't an out-and-out lie, given that the person who abused the mentally disabled was criminally prosecuted and is going to jail. The only question in this case is whether a trial lawyer will be allowed to blame an innocent third party for someone else's crime.

I didn't make a personal attack on you - I made a personal attack on the SE Record.

My statement isn't false. This outcome is a direct result of Tex. Civ. Prac. & Rem. Code Ann. § 74.351(a), which the court explains. In other states without that ridiculous law, the plaintiff wouldn't need to hire a doctor and run up his costs. You can argue all day long about whether the plaintiff needed an expert to testify about staff supervision, but that's not why the appellate court reversed.

Innocent third party? Once again you reflexively come to the side of the defendant, even though you lack a scintilla of information to determine whether the nursing home could or should have prevented this. You'll note that even *I* point out the nursing home may very well have an argument that they shouldn't be liable. The only position I took is that the "reform" measure is inane.

Perhaps a more accurate title for the post would be, "Texas: No better place to own a nursing home where your staff abuse the mentally disabled." Oh well, maybe next time.

A couple months back, Ted wrote a blog post that included the line "The SPCA didn’t kill his dog; trial lawyers did[.]" Clearly, his hyperbole is okay, whereas Justinian's is an evil lie. EVIL I say.

"In other states without that ridiculous law, the plaintiff wouldn't need to hire a doctor and run up his costs. "

This is simply false. I'm not aware of a single state that doesn't require expert testimony about the appropriate level of duty. The only difference in Texas is that the expert (1) must actually be qualified and (2) must be willing to testify at an yearlier stage in the case. This reduces, not runs up, costs.

Denver Lawyer, the difference is that my statement was true. Trial lawyers created a legal environment that forced the SPCA to kill the dog rather than put it up for adoption, because trial lawyers will attack any attempt of the SPCA to contract around the legal rule that makes them responsible for any injury the dog causes. One reason I fight so hard for freedom of contract is because I don't want trial lawyers restricting my choices as a consumer. Tort reform expands consumer choice and is pro-consumer.

The implication, of course, being that if anything goes wrong, it's all the consumer's fault because he or she made a choice. (Corporations never make choices, except rational ones.) Tort reform, therefore, is a blame-the-consumer movement.

"The implication, of course, being that if anything goes wrong, it's all the consumer's fault because he or she made a choice."

That's absolutely a non sequitur, but it's understandable that mythago would seek to mischaracterize the argument for consumer choice since she has no legitimate argument against putting power in the hands of consumers rather than lawyers.

Justinian: Docs have to prove they have insurance or self-coverage before they renew their license. No insurance, no work. That is so lawyers have an assured supply of plunder.

Explain why lawyers should be allowed to practice or renew a license without insurance? If the insurance is too expensive for the lawyer, it implies he is not competent enough to earn enough to cover it, and needs insurance most.

Will you openly support ending the privity obstacles to legal malpractice claims by adverse third parties? Kia has. If you refuse to endorse the idea, you are a hypocrite. You want lawyers to sue everyone, and no one may sue them back. If you claim torts improves products and services, then explain why lawyers, judges and legislatures deprive themselves of this great quality enhancer by their unlawful and unjust, self-dealt immunities. Or, shut up about the liability of others, being a hypocrite. I know you are a running dog for totally dirtbag plaintiff litigators. Surprise me by being consistent and even handed.

Ted opposes ending this immunity. He is an hypocrite when it comes to this ultimate test of sincerity and fairness. It will require passage of state constitutional amendments and troops to enact. All state Supreme Courts will strike down this anti-criminal cult enterprise measure to shield themselves.

Supremcy CLause: In Texas, doctors are allowed to practice medicine without malpractice insurance. There is no state where lawyers are immune from liability. Lawyers can and are sued for malpractice just like any other professional. In fact, there are lawyers who specialize in suing other lawyers.

Ted: R U actually saying that a nursing home has no responsibility for the actions of its employees? When you place someone in a nursing home, is it too much to expect that your loved one will be safely cared for or that the nursing home hires qualified people or that residents are not beat up? You also need to brush up on your tort law. It is generally not meant to punish the wrongdoer, although it may serve a deterrent.

A "tort" is a "wrong". A just and ethical society believes a wrong-doer should be held accountable to pay for the careless/wrongful act it commits against an innocent victim. Payment is in the form of monetary resitution. Unless we revert back to Hammurabi's law, money is the only way to achieve accountability. Unless you want to make negligence a crime, there is no other way for a tort victim to achieve justice other than through resitution. But we know your real goal and that of the tort reform movement is complete tort immunity..that is complete freedom to injure, maim and kill without consequence.

Al: The lawyer may be sued for legal malpractice by a client. Even then, the client must prove a deviation from standards caused a harm. Next, the client must retry the lost case and prove that he would have won the trial. He does that double trial bit. Next, he must prove he could have collected from the losing defendant.

Most legal malpractice consists of filing weak and frivolous cases. The adverse third party has no recourse. If you reply, about abuse of process or misuse of civil procedure?

Short of a written or taped confession of knowing and intentional filing of a bad claim (malice), those claims will fail.

The system is rigged airtight against any accountability for the lawyer, even from clients.

Justinian has yet to reply. Does he support bringing the great benefits of torts to the lawyer, judge and legislator professions? If he does not, he should shut his hypocritical mouth, as should all the lawyers. If the answer is these cult criminals are too busy to deal with frivolous lawsuits, the public has placed far higher value on the time of the victims of lawsuit abuse by wages higher than that of the lawyer.