Justice Scott Brister would require trial judge to go after attorneys when blood cannot be drawn from dead malpractice plaintiff -- as punishment for bringing health care liability claim without expert report. Hecht would join in the blood-letting to further enfeeble the plaintiff's bar in the name of legislative intent and in denigration of "the American Rule" against fee recovery by prevailing defendants.
Gurkoff, D.O. v. Jersak, No. 08-0398 (Tex. Feb. 27, 2009)(Brister)(Dissent from denial of petition for review) (urging that sanctions in the form of defendant's attorney's fees for failure to file expert report in medical malpractice suit be imposed on plaintiff's attorneys when no money can be collected from client's estate)
EXCERPT FROM THE BRISTERING DISSENT:
Generally, trial judges should hesitate to impose sanctions on an attorney lest they chill zealous representation. But the Legislature found that such hesitation was driving physicians from Texas and patients from medical care they needed.[7] When an attorney is responsible for filing a suit without expert support, it is both illogical and wasteful to insist that the defendant pursue a plaintiff with no assets. Accordingly, I would reverse the court of appeals' opinion and order the trial court to assess sanctions against Jersak's attorneys.
JERRY GURKOFF, D.O. v. ROSEMARY JERSAK; from Tarrant County; 2nd district (02‑07‑00101‑CV, ___ SW3d ___, 04‑10‑08) Justice Brister, joined by Justice Hecht, delivered an opinion dissenting from the denial
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