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 Responses for “No Better Care, Thanks to Tort Reform”

  1. rbar says:

    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.

  2. steve says:

    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

    • Jonathan H says:

      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.

  3. Dr. Mike says:

    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

    • Jonathan H says:

      “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.

  4. Faye says:

    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.

  5. John says:

    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.

  6. Peter1 says:

    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.

  7. Carlos Cardenas, MD says:

    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.

  8. Lynn in SC says:

    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.

  9. Norman Chenven, MD says:

    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.

  10. SteveH says:

    “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.

  11. Peter1 says:

    “(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/

  12. rbar says:

    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.

  13. Cilla Mitchell says:

    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.

  14. FLPCP says:

    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…

  15. Peter1 says:

    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.

  16. FLPCP says:

    Means nothing, and is a silly statistic.

    If this is true, why do you think it’s happening? Please site your sources.

    See my data above. There has been a 50% increase in the influx of physicians since 2002 and tort reform. The author’s citations are moot and misleading.

  17. Peter1 says:

    “See my data above.”

    You’re being statistically liberal with your choice of years to announce a 50% increase. Tort reform did not occur until 2003, you’d have to assume doctors were waiting at the gate in 2002 for medical licenses that got processed in 2003 to get your 50% increase. Why then can’t it be assumed that the drop in new licenses between 2003/2004 was also due to tort reform?

    Furthermore to assume that the only “benefit” that matters from tort reform is new physician licenses in itself is self serving and assumes new licenses operate in a vacuum of total health care considerations.

    The fact remains:

    -The per capita increase in the number of doctors practicing in Texas has been far slower than in the preceding years.

    -The per capita number of primary care physicians practicing in Texas has remained flat, compared to a sharp increase in the years leading up to the caps.

    -The prevalence of physicians in non-metropolitan areas has declined.

  18. FLPCP says:

    Peter1,

    Let me be more specific. The annual number of newly-licensed physicians went from a pre-reform total of 2,088 in 2001 to a peak of 3,621 in 2008, five years after tort reform was enacted, a 57% annual increase. In aggregate, roughly 8,000 more physicians moved to Texas than likely would have without tort reform based on the trending data above. This is significant.

    Please see the chart above, as it tells the tale for me.

    There is a clear trend in the number of physicians migrating to Texas. And as a physician whose is conversant with110,000 colleagues through a physician-only website, I can tell you anecdotally that this phenomenon is very real (although we both know anecdotes are not fact, so take my comment for what you may).

    I’ll address some of your concerns specifically:

    This has nothing to do with tort reform or the influx of physicians into the state. Rather, it is likely a response from the insurance industry to the influx of illegal immigrants that are swamping ERs across the state, driving up the premiums for the rest of us.

    Re-read my original post to see why DPC is an irrelevant and misleading statistic.

    Physicians who practice high-risk specialties like OB/GYN and neurosurgery are much more likely to practice in a state where they are less likely to lose their entire life savings. This influx of specialists is good for the citizens of Texas.

    This trend is nationwide and not exclusive to Texas.

    This trend too is nationwide, as fewer and fewer medical student graduates choose to enter primary care. According to a study by the New England Journal of Medicine a few years back, only 2% of recent graduates are entering primary care internal medicine. There are many reason for this, but that is the subject of another post.

    The point of my initial comment was that Mr. Silver knowingly manipulated data to imply that tort reform did not improve the malpractice climate enough in Texas to entice new physicians to the state, which is totally false. Tort reform has worked in Texas, just like it did in California and my state of Florida.

    Serious consideration for tort reform needs to be given at the national level, as defensive medicine is estimated to cost $60 billion annually. Limiting caps on non-economic damages still protects patients, but decreases the ridiculous judgments that ruin physician’s lives and enrich plaintiff’s attorneys.

    Enacting meaningful tort reform will minimize the effect of one more parasite on the healthcare system– lawyers.

  19. nate ogden says:

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

    Not just lawyers but most of academia and politicians. When I first read this article the use of % jumped out at me. A huge flapping red flag that he was hiding something. Like using % when discussing Medicare admin fees.

    It wouldn’t account for population growth or change in demographics. Was based on unreliable inputs, while it is easy to count the number of licensed doctors with illegal immigration who has any idea how many people actually live in TX.

    When I tried to check out those sites he links I couldn’t find actual belly button counts just more abstract %s. Glad to see someone knew the real numbers and discredited this argument.

  20. Peter1 says:

    “Enacting meaningful tort reform will minimize the effect of one more parasite on the healthcare system– lawyers.”

    The least of the “parasites” is malpractice suits.
    http://www.factcheck.org/president_uses_dubious_statistics_on_costs_of.html

    What really drives costs are the professional medical “parasites”.
    http://www.newyorker.com/reporting/2009/06/01/090601fa_fact_gawande

  21. FLPCP says:

    Peter1,

    Somehow the formatting was lost on my above comment, nevertheless I think you understood my response. I take it you have no response to my comments.

    I’ll again respond to yours.

    “The least of the “parasites” is malpractice suits.”

    Nonsense. Only a lawyer would make such a statement. The flawed medical malpractice climate in this country is like no other. Trial attorneys abuse the legal system, physicians and their clients in order to make fantastic amounts of money (John Edwards anyone?), all in the name of “justice”. While there are certainly clear-cut examples of medical malpractice, lawyers have made it into a lottery, with television commercial running every 5 minutes encouraging patients to file suit merely for bad outcomes, regardless of whether there was true malpractice or not.

    One thing that tort reform did in Florida was drastically reduce the number of meritless lawsuits. Most of these were “nuisance” suits designed to eke out small sums of money in a settlement that defense lawyers found not worth fighting. One year after tort reform was enacted in Mississippi, medical liability lawsuits dropped 91%. What does that tell you about the merits of previous lawsuits there?

    Your factcheck quote states: “But both the GAO and the CBO now question their sweeping conclusion. When the CBO attempted to duplicate the Stanford economists’ methods for other types of ailments they found found “no evidence that restrictions on tort liability reduce medical spending.”
    “In short, the evidence available to date does not make a strong case that restricting malpractice liability would have a significant effect, either positive or negative, on economic efficiency, ” the CBO said.”

    The analysis is from 2004, before tort reform was enacted in either Texas or Florida. In fact, the only real tort reform was MICRA in California, so there was little information for the CBO to analyze.

    The real costs to the system from practicing “defensive medicine” are more difficult to determine, with estimates ranging from $60-250 billion a year. As someone who practices defensive medicine every day, I think this is seriously underestimated. One thing your citation fails to consider is that it may take a generation for physicians to change their culture in a less litigious legal climate. We have been on our heels because of lawyer-parasites for three decades now, and old habits are hard to break, especially when your life savings are at stake.

    I can assure you, changes to how claims of medical malpractice are handled—whether with tort reform, loser pays or special medical courts—WILL change physician behavior and save the system money.

    Lastly, I’m very familiar with the Gawande article, and agree that overutilization needs to be addressed. In this regard, we physicians have not been good at policing our own. Nevertheless, your citation is a digression from the original article. The author’s claim was that tort reform did not attract physicians to Texas, which I proved to be false.

  22. Peter1 says:

    “Only a lawyer would make such a statement.”

    No, I’m not a lawyer, I don’t even like most lawyers, but I also don’t want my right to recover legitimate damages taken away from me, especially when I’m given nothing in return.

    “(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.”

    How is this lowering lawyers ability to negotiate frivolous out-of-court settlements?

    ” or lawyers have made it into a lottery, with television commercial running every 5 minutes encouraging patients to file suit merely for bad outcomes, regardless of whether there was true malpractice or not.”

    Don’t you guys have lawyers? Are your lawyers a bunch of incompetent boobs?

    “One thing that tort reform did in Florida was drastically reduce the number of meritless lawsuits.”

    How do you know it is “meritless” if it doesn’t go to court? Docs don’t care if it has merit, they just don’t want to deal with it. Changing the rules does not decide merit, it only changes the rules so that merit is never allowed to be debated in court. Reducing the lawyers take only restricts their ability to fund expensive suits and it blocks small suits with “merit” because they’re too small to return expenses.

    “The real costs to the system from practicing “defensive medicine” are more difficult to determine, with estimates ranging from $60-250 billion a year. As someone who practices defensive medicine every day, I think this is seriously underestimated.”

    http://health.usnews.com/health-news/managing-your-healthcare/healthcare/articles/2010/09/07/cost-of-medical-malpractice-tops-55-billion-a-year-in-us

    “the amount of defensive medicine is not trivial, but it’s unlikely to be a source of significant savings,”

    http://www.reuters.com/article/2011/08/17/us-doctors-idUSTRE77G5YS20110817

    “I can assure you, changes to how claims of medical malpractice are handled—whether with tort reform, loser pays or special medical courts—WILL change physician behavior and save the system money.”

    http://www.businessweek.com/magazine/content/09_39/b4148030880703.htm

    “As someone who practices defensive medicine every day”

    So, since TX tort reform how much has your “behavior” changed? Have your billings been reduced? How much income of docs and hospitals will this reduce?

    “…save the system money.” Where?

    http://www.forbes.com/2009/08/10/health-care-plan-lifestyle-health-obama-health-care-bill.html

    “we physicians have not been good at policing our own”

    Amen. Have you ever been a witness against another doctor or submitted a formal complaint against a colleague? You guys operate under the, “but for the grace of God go I” system.

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