No Better Care, Thanks to Tort Reform

No Better Care, Thanks to Tort Reform

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In 2006, Dr. Howard Marcus wrote that Texas’ 2003 tort reform statute sparked an “amazing turnaround” in which doctors came to Texas in droves, instead of leaving the state as they had before. He was doubly wrong. Texas neither lost doctors before 2003 nor gained them especially quickly in subsequent years. In fact, according to statistics published by the Texas Department of State Health Services (TDSHS), the supply of active, direct patient care (DPC) doctors per capita grew faster from 1996 to 2002 than at any time after 2003. If the pre-reform growth rate had simply continued, Texas would have seven more DPC doctors per 100,000 residents than it does today.

Not only did pre-reform Texas outpace post-reform Texas; in the post-reform period Texas fell farther behind the average U.S. state. In 2002, Texas had 61 fewer DPC physicians per 100,000 residents than the average state. In 2010, Texas lagged the average state by a whopping 76.5 doctors per 100,000 residents, according to data published by the American Medical Association (AMA). Texas’ downward slide is also accelerating, meaning that Texas is falling behind the average state both farther and faster each year.

These statistics are public and well known. They can be found at TDSHS’s website and in a report Public Citizen published earlier this year. In view of this, it is shameful that Marcus, his colleagues at the Texas Alliance for Patient Access and Republican politicians continue to mislead. They are blatantly exploiting the ignorance of people who have better things to do than read up on the number of doctors in the State.

Marcus and his accomplices know about TDSHS’s numbers but have ignored them in all prior public statements I’ve found. They want to give glowing reports, so they focus on the number of new licenses granted by the Texas Medical Board (TMB) instead. TMB’s count of new licenses is misleading, however, because it ignores the number of doctors who leave the state, retire, die or stop seeing patients for other reasons. Suppose 100 calves were born into a herd of cattle that also lost 250 adult animals because of the heat and drought. The rancher who owned the herd would say he was down 150 head. Marcus and his buddies would say the herd grew by 100.

Marcus also gives tort reform credit for every doctor who showed up at Texas’ doorstep after the tort reform statute took effect. He ignores the fact that new doctors entered the state every year before 2003, and that many more would have come in later years in the absence of tort reform. It is easy to net out the historical growth rate, but that would make the 2003 statute seem less successful, so Marcus doesn’t do it.

The 2003 statute did have two demonstrable effects. First, it made doctors, hospitals and malpractice insurers millions of dollars richer by devaluing the claims of injured patients. Various sources report that premiums for liability coverage fell by half, and a study by a research group to which I belong finds that, after 2003, the number of dollars flowing to patients declined by more than 70 percent. This is a straightforward redistribution of wealth from malpractice victims to the proponents of tort reform. Second, the statute put many contingent fee lawyers out of business. If you’ve tried to find a lawyer to handle a med mal claim, you’ll have discovered this truth first-hand.

In my opinion, these were the only effects the 2003 statute could reasonably have been predicted to have. They were also the effects, I believe, that the statute’s proponents — including Marcus, Gov. Rick Perry and other Republicans — wanted. Everything else, such as the promised improvements in access to health care and reductions in health care costs, was cotton candy spun to win Texans’ votes and hide the proponents’ self-interest.

I doubt that this column or anything else will persuade Marcus to change his tune. Every day brings fresh evidence that the leaders of America’s medical profession will say anything and everything to avoid liability for medical errors, regardless of the truth. On October 15, 2011, Dr. Robert M. Wah, the AMA’s chairman, published a letter in TheNew York Times claiming that “medical liability reform provides a solid solution for reducing the federal deficit.” I’m surprised he didn’t add that it cures baldness, colds and rheumatism too.

Professor Charles Silver holds the Roy W. and Eugenia C. McDonald Endowed Chair at the University of Texas School of Law, where he writes and teaches about civil procedure, professional responsibility and, increasingly, health care law and policy. This post originally appeared in The Texas Tribune.

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25 Comments on "No Better Care, Thanks to Tort Reform"


Guest
rbar
Oct 26, 2011

I am torn on this issue. I am a physician and I think, like the overwhelming majority of physicians, that the medicolegal system is highly dysfunctional – costly, unfair and expensive.

But reading the above, I want to state the following:
-tort reform is worthless unless it solidly protects medical judgment and non-negligent overisghts (e.g. diagnostic errors in complex situations). Without that, overtesting will prevail. Caps don’t change much from a physician perspective.
-it seems that the issue of medical tort reform – which I think IS a legitimate issue – is highjacked by the right to attack consumer protection in general. Yes, I believe there are some frivolous lawsuits and plaintiffs getting an unfair monetary gain (verdict or settlement) – but I believe (although it is probably impossible to prove in statistics) that there are enough victims that are hurt by something (including real medical malpractice) who remain uncompensated.
If you loose your health, you health insurance is covered in virtually all industrialized countries. If it happens to you in the US and you don’t have other resources, you are doomed.

Guest
steve
Oct 26, 2011

1) Universal health insurance makes malpractice insurance much less necessary.

2) European countries w/o malpractice anywhere near what we have provide equivalent care. Malpractice suits probably do not affect quality of care, at least in the setting of universal care.

3) Malpractice is an emotional issue out of proportion to its economic effects. It should be reformed to make it easier to obtain relief, but w/o the huge settlements. Experts should actually be experts and venues should be appropriate.

Steve

Guest
Jonathan H
Oct 26, 2011

Steve, I see a lot of benefits to universal health insurance, but I do not get why malpractice insurance would be much less necessary. Can you explain?

I agree on #2 and #3.

Guest
steve
Oct 27, 2011

A number of suits are brought to help pay for the medical costs incurred when an outcome is bad.

Steve

Guest
Dr. Mike
Oct 26, 2011

Rubbish.
Maybe Marcus put out rubbish too, but that is not justification for further rubbish.

Put malpractice lawyers out of business? I’m supposed to feel bad about that? Really?

Transferred wealth from patients to doctors? As if it was their money. This statement could only be written by a lawyer.
There is no proven benefit to society from our current medical tort system. None. Zero. Nada. That doesn’t mean that any old reform is better (eg obamacare compared to current) but reform is needed.

Again, Pure Rubbish

Guest
Jonathan H
Oct 26, 2011

“Transferred wealth from patients to doctors? As if it was their money. ” Actually, Dr. Mike, originally it was. Where do you think the doctors got it from?

This article is not saying that tort reform can serve no purpose, only that this tort reform had no benefit for patients, and if anything seems to have left them worse off.

Guest
Oct 26, 2011

lucky for me my fitness coach helps keep me healthy but all i know is prices are too high, waiting lists are too long and those of us who are willing to work long hard hours to pay for assurance of health care seem to be nickled and dimed to death and its just too much for those of us who take care of ourselves, eat right and live safe, low-risk lifestyles. im no expert but im paying almost $500 a month and may see a doctor once a year for a minor issue. its out of control.

Guest
John
Oct 26, 2011

Agree with Dr. Mike. As a newly minted Attending physician you can bet I and my fellow Residency graduates looked at Malpractice Legislation in desirable locations. Reducing malpractice lawsuits has no downside to society while giving Physicians some piece of mind.

We graduate today knowing that we WILL be sued at some point in our careers. More than the financial risk, we dread the emotional turmoil and untold hours of miserable, depressing discovery, preparation, heartache and testimony.

As stated above, there is no benefit proven benefit to Malpractice outside of insurance companies and trial lawyers. Most affected patients don’t get compensation. Over testing and defensive medicine is a huge problem. Many of the cases aren’t won due to gross negligence, but lawyers praying on juries emotions (e.g. Edwards’ Cerebral Palsy “victories”).

I practice in California. While the Malpractice caps are no panacea, they help to reduce a fundamentally flawed system’s incentive to waste societies resources. I sleep better at night because of that.

Guest
Peter1
Oct 27, 2011

As a result of Texas Tort Deform the Texas Medical Board was given more oversight power, but that soon was overridden as doctors complained about a too aggressive board. The medical board does not even review the medical histories in other states of new docs applying for a TX license. If you’re a bad doc then flee to Texas. So docs want it both ways, no chance of malpractice consequences, either from the courts or from their own medical board. The god complex continues.

Guest
Carlos Cardenas, MD
Oct 27, 2011

In “No better Care, Thanks to Tort Reform, ” the author incorrectly assets that medical lawsuit reform is a partisan issue. It isn’t. It is an access to care issue. Democrats and Republicans supported the 2003 reforms, which have remained intact through bipartisan support. The vote for Proposition 12 was a statewide referendum on tort reform. Democratic-leaning areas of the state such as San Antonio, El Paso, and here in the Rio Grande Valley favored Proposition 12 because those voters recognized that having more doctors providing more care was in the best interest of their respective communities.

Guest
Lynn in SC
Oct 27, 2011

I’m willing to support tort reform when physicians (all physicians) are willing and able to publish their score cards that clearly displays: runs, hits, error, times a bat, etc. I’d also like to know height weight marital status …basic trading card stuff with A medical diploma and state license doesn’t guarantee a good doctor only one who is legally minimally competent.
Maybe I want the “C” medical student who listens and cares over the “A’ med student who owns diagnostic equipment and wants to do just one more test.

Guest
Norman Chenven, MD
Oct 27, 2011

Mark Twain, in “Chapters from My Autobiography,” popularized the saying: “There are three kinds of lies; lies, damned lies and statistics.” That phrase has found its perfect application in Law Professor Charles Silver’s opinion piece regarding Texas tort reform. No objective, intelligent, highly educated lay person could reasonably make any sense regarding the merits of of the 2003 law after having read the two competing commentaries–which quote a host of apparently contradictory and obscure statistics along with a gratuitous ad hominem attack by Silver on Marcus and the entire medical profession.

There are only a handful of common sense data bits that a lay person needs to know about tort law before attempting to assess its value or societal benefit:
(1) Texas tort reform does not deprive injured individuals of their ability to sue or be granted multimillion dollar judgments when those judgments are warranted. The law limits the recovery of pain and suffering-type damages at $750,000. It places no cap on past or future medical bills or lost income from injury.
(2) The fact that smaller cities and rural communities have been able to recruit doctors in high-risk specialties such as obstetrics and emergency medicine is well documented. This is a fact–not a statistic.
(3) The total cost of the legal system to Texans (plaintiff and defense lawyers’ fees, malpractice insurance premiums, medical expert testimony , court costs and, yes, judgments and settlements) has been cut in half. Another fact–not a statistic.
(4) Considerable funding and clout was given to the Texas Medical Board in the 2003 legislative session. The strengthening of the Board was supported y the Texas Medical Association and virtually all medical professionals. Unethical and incompetent doctors have been routinely identified, sanctioned and lost their licenses in Board action. The public is better protected than ever before.

Finally, my organization, Austin Regional Clinic, along with most hospitals and physician groups, is actively investing in new technologies to improve access and quality of care. The cost of these investments such as electronic medical records, e-prescribing, and outreach programs dwarves any dollar savings realized from tort reform.

Guest
SteveH
Oct 27, 2011

“This is a fact–not a statistic.”

I usually find it a fact that when someone states that something is a fact not a statistic, it means they have absolutely no proof whatsoever that this fact is true.

Guest
Peter1
Oct 27, 2011

“(2) The fact that smaller cities and rural communities have been able to recruit doctors in high-risk specialties such as obstetrics and emergency medicine is well documented. This is a fact–not a statistic”

Not according to this:
http://www.texastribune.org/texas-state-agencies/health-and-human-services-commission/tough-to-recruit-doctors-in-rural-texas/

Guest
rbar
Oct 27, 2011

I find myself in the strange situation that I have to say something in favor of th ecurrent medicolegal system which I took a lot of time and words attacking here in the past.
Malpractice settlements do not necessarily need to prove benefit to society (even though I find it logical that some level of threat if you screw up is needed – the problem currently is that too many courts/juries do not operate on the “let’s find negligence” level, but are rather prone to the “let’s see whether we can somehow blame someone for a bad outcome” fallacy. Malpractice settlements are to benefit an individual that has been harmed by true medical negligence, and everyone practising medicine knows that these patients do exist (side note: I know I know, it’s a lottery, and many patients who receive money do not fit the bill, but OTOH, some deserving patients do not get compensated).

@John
“More than the financial risk, we dread the emotional turmoil and untold hours of miserable, depressing discovery, preparation, heartache and testimony.
….
While the Malpractice caps are no panacea, they help to reduce a fundamentally flawed system’s incentive to waste societies resources. I sleep better at night because of that.”

Agree with the 1st statement, but it’s somewhat inconsistent with the 2nd, with which I disagree. Most physicians don’t care that much whether they could be sued for 500 K or 3 Million (sure, if you have the choice, you rather choose the guillotine over being stoned to death). As you explained so well in the 1st statement.

@Peter:
I agree, any rational tort reform should include something better that has to replace the current system. To me, a strong federal board with independent anonymized peer review would work well to detect real negligence or true incompetence. If presented with a fair system, the majority of physicians and physicians’ organizations (there is more than just the AMA, probably almost all docs except Rand Paul are professionally organized somewhere) would be in favor.

Guest
Cilla Mitchell
Oct 28, 2011

In 100% agreement with you Mr. Silver. After reading the fabricated diatribe Dr. Marcus wrote for this blog the other day, I was hesitant in visiting again. When I read your article, the visit was well worth the time.

Guest
FLPCP
Oct 28, 2011

This article is indicative of the deflective and deceptive modus operandi we’ve come to expect from lawyers.

Mr. Silver has purposely manipulated and inaccurately relayed the TDHSH data in his post. His claim that “Texas neither lost doctors before 2003 nor gained them especially quickly in subsequent years” is not borne out by the facts. Here is a graph, from the very source he quotes above, clearly showing a decline in newly-licensed physicians prior to tort reform, and a dramatic increase in licensed physicians after:

http://www.tapa.info/Downloads/10-24-11_Story/05_TAPA_Newly_Lic_TexPhysician.pdf

Mr. Silver makes his case on “direct patient care doctors per capita” (DPC), which, as any fourth grade math student can tell you, is obviously dependent on an increase or decrease in the total population (the numerator), which has grown from 19 million in 1996 to 26 million in 2011.

Regardless of how the population increase has occurred—whether due to Texas’ business-friendly environment or due to its massive immigration problem—the fact is that there has been a 50% (!) increase in new physicians (the denominator) flocking to Texas since tort reform was enacted.
That is fact.

In addition, as stated above, Texas’ tort reform only caps limits on NON-ECONOMIC damages, or “pain and suffering”. Awards for lost income and any current or future medical expenses are not affected.

In the end, the plaintiff’s lawyer nets 30-50% of the award; a handsomely sum.

Trial attorneys—paid to deflect and deceive—continue to proffer misinformation to our patients and the public in order to perpetuate a tort system that reaps their colleagues millions of dollars a year and rapes patients and doctors.

Sadly, Mr. Silver has shown that he not above making false attestations or casting aspersions. He is, after all, a lawyer…

Guest
Peter1
Oct 28, 2011

Public Citizen:

since 2003 tort reform –

-Medicare spending in Texas has risen 13 percent faster than the national average.
-Premiums for private health insurance have risen faster — 51.7 percent in Texas than the national average.
– Although there are more physicians practicing in Texas now than before 2003, the rate of increase per capita actually is slower than it was before 2003.
-The number of primary care physicians in Texas per capita remains about what it was before 2003, and the number of doctors in rural areas actual has declined. The bragged-about influx of physicians have been mostly specialists moving to metropolitan areas.