Better Care in Texas Thanks to Tort Reform

Thanks to the passage of lawsuit reforms, medical care is now more readily available in many Texas communities. For many patients, this change has been life-altering; for some, life-saving.

George Rodriguez walks today thanks to tort reform. Newly established Corpus Christi neurosurgeon Matthew Alexander urgently operated on Rodriguez’ spinal abscess, relieving the pressure on his spinal cord, and sparing him life in a wheel chair. Without the state’s lawsuit reforms, Dr. Alexander wouldn’t have relocated to Texas and Mr. Rodriguez would have been deprived access to emergency neurosurgery in Corpus Christi.

Cancer survivor Ruby Collins credits newly minted Brownwood urologist Daniel Alstatt with saving her life. Dr. Alstatt says he wouldn’t have moved there, were it not for tort reform.

Andrya Burciaga of McAllen, a complex patient with diabetes and hypertension, is a first-time mother, thanks in part to the expertise of obstetrician/fertility specialist Dr. Javier Cardenas. Again, if not for the passage of the reforms, Dr. Cardenas says he absolutely would not have returned to his hometown to practice medicine nor taken problem pregnancies such as Ms. Burciaga’s.

Because of reforms, more patients across Texas are getting the care they need, when they need it.

Eight years ago, Texas was in the throes of an epidemic of lawsuit abuse. High numbers of meritless lawsuits, combined with excessive awards, caused doctors’ medical liability rates to double within just four years. Non-profit nursing homes saw their rates jump 900% within that same time frame, while hospitals saw liability costs increase as much as 50% in one year. Roughly one in four doctors was sued every year while the vast majority of these suits and claims were closed without payment.

Good doctors, pushed to the financial brink, stopped taking emergency call out of fear it would make them vulnerable to a lawsuit. Thirteen physician liability carriers left the state. Some 9,000 physicians were non-renewed by their carrier, putting them in jeopardy of losing their hospital privileges. The number of newly licensed Texas physicians fell to its lowest level in a decade. In 2004, Texas experienced the greatest decline in direct patient care physicians per capita in twenty years.

In response to this crisis, our organization supported and the legislature passed sweeping medical lawsuit reforms in 2003. The lynchpin of the reforms was a cap on “pain and suffering” awards. This cap struck a balance; it assured those injured by a medical mishap that they would be reasonably compensated, while it allowed conscientious doctors to find affordable liability coverage so that they could continue to serve their patients.

Since then, liability rates have plummeted nearly 50%, and good doctors have flocked to Texas in record numbers. Nursing homes and hospitals are again fully operational.

Today, many counties that lacked an orthopedic surgeon , an emergency medicine physician or a cardiologist now have one. The number of obstetricians practicing in rural Texas has grown four times faster than the state’s rural population. For the first time in memory, the CHRISTUS Health System, with hospitals, long-term care facilities, and clinics in more than 60 Texas cities, has no openings for obstetricians.

Twenty-nine counties that saw a net loss of physicians pre-reform registered a net gain post-reform. Those “losers turned gainers” include Potter and Jefferson counties, which lost 26 and 15 doctors, respectively.

All of these new physicians translate into 6 million more doctor visits annually for Texans who are sick or injured.

Since 2007, Texas has consistently licensed 60% more new doctors each year than occurred in the years predating tort reform. According to the most current data from the Department of Health and Human Services (2003-2008), Texas ranks 10th nationally in percentage growth of patient care physicians per capita, up from 23rd just five years earlier.

This physician growth is driven by something other than population. Survey after survey confirms that doctors new to Texas cite our liability climate as important in their decision to practice here.

By any objective measurement, the accelerated growth of new doctors, in-state active doctors, high-risk specialists and doctors who provide direct patient care per capita all exceed pre-reform levels.

Nothing in the law prohibits lawyers from taking cases. Patients harmed due to medical negligence can still collect fair compensation. Only the non-economic damages are capped and that at $250,000 to $750,000, depending upon the variety of defendants in the suit. That means no cap on damages for lost wages or past, present and future medical costs.

Trial lawyers will argue that they can’t afford to take cases now that there is a “pain and suffering” cap of $250,000. And yet, claims data from the Texas Department of Insurance reveal that since 1993, on average 500 cases are settled each year against doctors for $250,000 or less.

More doctors delivering more care is good for patients.

Howard Marcus is an internist at Austin Regional Clinic. He is the chairman of Texas Alliance For Patient Access, a statewide coalition of doctors, hospitals, clinics, nursing homes and physician liability insurers. This post originally appeared on the TAPA website.

21 replies »

  1. because of tort reform there is no lawyer that will represent me. They cut out a large portion of my good lung against my will & without consent. I went from sky diving to homebound. I am going to die. That surgeon operates on patients every day. Good Luck!

  2. The physician who authored this work failed to calculate the growth of physicians in Texas per capita:


    Our experience in Florida in 2004 has produced similar results – we have trouble recruiting new graduate physicians even though malpractice awards are capped at $250,000 for non-economic damages (pain and suffering).

    Thank you for all the comments – you have helped illuminate a complex and potentially confusing issue for voters in the upcoming 2012 Presidential elections.


  3. Isn’t the state of Texas slowly burning to the ground? And inviting illegal aliens to come and be encouraged to stay? And don’t they execute anyone who is found guilty of killing a white person? Yeah, there’s a place I would want to live and practice medicine!

    California and Texas, if these continue to be the states that set precedence to what should be the state of affairs for all in America, what a wonderful third world place the U.S. will be by the end of this decade.

    Don’t worry, Illinois is a close third on the list, as is my state on the East Coast!!!

  4. This article is a superb example of how to mislead by choosing partial numbers rather than citing statistics for the whole state. Note that he does not give us the actual numbers for much of anything. Argument by assertion and obfuscation.


  5. Because of Tort Reform, Texas attracts the most dangerous, least qualified doctors in the country. They are safe here since the Texas Medical Board does not do a background check to see how many patients under their care were injured or killed; they say the state can’t afford the cost of $160,000. (But the state can afford Rick Perry’s $10,000 a month residence and all his travel expenses as he travels the country). That shows where their priorities are.

    How has Tort Reform benefitted the average Texan? The only beneficiaries are doctors, hospitals, and insurance companies, the rest of us have lives that, according to Tort Reform, is not worth a plugged nickel.

    Go pedal your lies about your wonderful Tort Reform to someone too stupid to Google “Texas Tort Reform”. The rest of us aren’t buying what you’re selling.

  6. ” you seem to be painting yourself into a corner.”

    That”s funny.

    Differential effects following some “causal” intervention (e.g., tort reform) are one thing, prognostications by “Texas legal experts” are quite another.

    That’s pretty textual 101 and not in need of any epistemic paintbrushes.


    “Loser pays” only removes a few frivolous suits, and probably discourages some warranted ones as well.” Maybe there’s cause-effect evidence out there. Just that you have not provided it.

    The word “probably” has one meaning to me, another to you, obviously. The unsubstantiated blanket “only removes a few frivolous suits” assertion aside.

  7. Please explain to me how any statement about the future (specifically, large scale human responses to interventions) is more than speculation, by your standards. Epistemically speaking, you seem to be painting yourself into a corner.

  8. Speculation. Right in the article:

    “The so-called “loser pays” law that Perry has touted as he seeks the Republican nomination for U.S. president will not have a significant impact in his state, according to attorneys and legal experts. The measure has sparked interest among proponents of legal reform nationwide, though other states are not rushing to adopt similar laws.

    Legal experts say the Texas law, which in certain cases makes the loser in a civil lawsuit pay the other side’s legal fees, is narrowly written, and will only affect a small number of lawsuits, perhaps 5 percent of those filed in Texas.

    “It’s a triumph of labeling,” said Walter Olson, a fellow at the libertarian Cato Institute in Washington, and an expert on legal reform. “This is not a ‘loser pays’ system — not even close. It is one little slice of ‘loser pays’ that wouldn’t have been given national attention if the label hadn’t been slapped on it.”…”

    ” will not have a significant impact”

    WILL not.

    Not, “DID not.”

    Speculation, not an empirical inference.

  9. Another video showing collateral damage left behind Tort Reform without the medical community having to be accountable is,


    Or, just Google Cleveland Mark Mitchell, then click on youtube Cleveland Mark Mitchell December 12 1950 – April 26 2008.

    If some of you take the time to view it, do you think anyone can ever walk away from the scenario without getting accountability.? I doubt Dr. Marcus would be able to walk away from this if it happened to someone near and dear to him. He would be writing an entire different article.

  10. How much did the insurance industry pay you to write this?

    I can send you documentation that will cover you with medical records showing that Tort Reform is a legal weapon used in Texas used against Texans ever since Governor Rick Perry signed the 2003 Tort Reform Act.

    If you want to see collateral damage left behind Tort reform, Google WHY DID YOU DROP THE BALL DR ANDRADE? He is free to practice in NYC.

  11. ““Loser pays” only removes a few frivolous suits, and probably discourages some warranted ones as well.”

    How can you know that? That’s sheer speculation.

  12. “Loser pays” only removes a few frivolous suits, and probably discourages some warranted ones as well. Isn’t the main reform needed some kind of expert panel, to replace a jury of people who don’t know anything about medicine?

    In any case, one of the two main problems with this article is pointed out in the one following it by Charles Silver: almost none of the physician growth data takes into account Texas’ growing population. The number of physicians per capita has not overall been affected by this law. So what’s the story here?

    The second main problem is that focusing on physician numbers is what you do when you can’t show any impact on the cost of care. Remember how malpractice reform was supposed to curb defensive medicine, which is sometimes estimated (wildly, I believe) at 15% or more of medical costs? The reality is less than half that, and the cold truth about “defensive” medicine is that much of the excess is overdetermined in a fee for service world. Take out the CYA motive and you still have the GMM motive (get more money) and the MPH motive (make patients happy), so the over treatment continues.

  13. Loser pays means that only the wealthy can bring suit, because even if you were truly harmed, there is no guarantee that you will prevail in court and that would be enough to deter those with no means to pay.

    Perhaps there could be a process to screen out blatantly frivolous suits, and let the rest take their course.

  14. So now, people who may be greatly disabled and in pain and deformed for the next 60+ years can receive, at most, $4000+ per year for their ongoing pain and suffering, an amount probably equal to about 30% of what the average doctor spends for each of those years for their yearly vacations.

  15. The Mythical Benefits of Tort Reform in Texas
    by Wendell Potter on September 1st, 2011

    “Lone Star state capped malpractice awards, but citizens have seen no benefits.

    In his quest to win the Republican presidential nomination, Texas Gov. Rick Perry is perpetuating a convincing hoax: that implementing Texas-style tort reform would go a long way toward curing what ails the U.S. health care system.

    Like his fellow GOP contenders, Perry consistently denounces “Obamacare” as “a budget-busting, government takeover of healthcare” and “the greatest intrusion on individual freedom in a generation.” He promises to repeal the law if elected.

    Unlike those in the “repeal-and-replace” wing of the Republican Party, however, Perry has emerged as leader of the “repeal-and-let-the-states-figure-it-out” wing that believes the federal government has no legitimate role in fixing America’s health care system.

    “To hear federal officials tell it, they’ve got all the answers on health care and it’s up to the rest of us to sit, wait and embrace whatever solution—if any—they may eventually provide,” Perry wrote in a newspaper commentary in 2009. “I find this troubling, since states have shown they know a thing or two about solving problems that affect their citizens.”

    Even as he points with pride to the alleged benefits of malpractice and other tort reforms that have been enacted during his tenure as governor of Texas, Perry says he is opposed to tort reform at the federal level. He cites the 10 th Amendment to the Constitution, which states-rights advocates say limits the role of the federal government.

    But if Perry had his way, all the states would do as Texas did in 2003 when lawmakers enacted legislation, which he championed, limiting the amount of money juries can award patients who win malpractice lawsuits against doctors and hospitals. The legislation capped non-economic (pain and suffering) damages at $250,000 in lawsuits against doctors and $750,000 against hospitals. A few months after he signed the bill into law, the state’s voters narrowly passed a constitutional amendment, also endorsed by Perry, which had the same effect. Proponents of the amendment wanted to be sure the new law would be constitutional.

    Texas, he wrote in that 2009 commentary “stands as a good example of how smart, responsible policy can help us take major steps toward fixing a damaged medical system, starting with legal reforms.”

    As a result of the 2003 tort reform law, malpractice liability insurers reduced their rates in Texas and, according to Perry, the number of doctors applying to practice medicine in the state “skyrocketed.”

    He says that in the first five years after tort reform was enacted, 14,498 doctors either returned to practice in Texas or began practicing there for the first time.

    That certainly sounds impressive—so long as you look at that number in isolation. But when you look at how Texas stacks up with the rest of the country in terms of physician growth in direct patient care, tort reform appears to have given Texas no leg up in competition with others states for doctors. In fact, according to statistics compiled by the American Medical Association and other physician organizations, Texas has actually lost ground when it comes to the number of doctors practicing in the state since tort reform was enacted. Big time.

    In 2008, the number of physicians in patient care per 10,000 civilian population in the United States was 25.7. At just 20.2 doctors per 10,000 people, Texas ranked near the bottom of the 50 states. In fact, only nine states fared worse. In 2000, three years before tort reform, Texas was still bringing up the rear, but not as badly. Back then, 11 states fared worse than the Lone Star state.

    Even more revealing, the number of doctors in patient care increased 13.2 percent nationwide from 2000 to 2008. It increased only 12.8 percent in Texas. The rate of growth was actually greater in 41 other states and in Washington, D.C. than it was in the Lone Star state.

    It is true that malpractice insurance rates dropped in Texas after tort reform was enacted, but Texans would be hard pressed to claim any direct benefit from that drop—except, that is, Texans who are doctors.

    The Dallas Morning News published a chart earlier this year showing that the average malpractice rate charged ob/gyns in Texas by the state’s largest domestic insurer of physicians fell from $53,752 in 2003 to $33,881 in 2011. The paper reported drops of similar percentages for doctors in family practice and general surgery.

    Advocates of tort reform have long claimed that one of the reasons for escalating health care costs is the “defensive medicine” doctors practice, such as over-treating and prescribing more medications and diagnostic tests than necessary, out of fear of being sued. Well, if Texans believed their own health insurance rates would go down once tort reform made defensive medicine less prevalent, they have by now been disabused of that notion. The chances of a Texas family saving a few bucks on premiums would actually be greater if they moved to another state.

    In 2010, the average premium for family coverage in Texas was $14,526. That’s $655 higher than the U.S. average. Those numbers seem to indicate that doctors have not passed on their own insurance savings to their patients and that they are not practicing medicine any less defensively than before tort reform was enacted.

    Not only are Texans paying more for their own insurance while doctors are paying less for theirs, their chances of getting employer-subsidized coverage is less than it would be if they lived in another state. The Dallas Morning News , citing statistics from the Agency for Healthcare Research and Quality and other sources, reported that a smaller percentage of employers in Texas offered coverage to their workers last year than in the U.S. as a whole (51 percent and 53.8 percent, respectively). And the Texans who do have coverage through the workplace are contributing far more out of their own pockets for that coverage than people who live in most other states. In Texas last year, the average employee contribution toward company-sponsored coverage was $4,500. The U.S. average was much lower: $3,721.

    Another statistic Perry is not likely to mention when he talks about the benefits of tort reform is the number of Texans who are uninsured. The U.S. Census Bureau reports that Texas continues to be the state with the highest percentage of its residents without coverage, a whopping 25 percent last year, compared to about 16 percent nationwide. It was dead last in 2003 and it is dead last now.

    All this should leave us wondering what “thing or two” states have come up with to solve the problems that affect their citizens. Considering the dismal state of health care in Texas, perhaps Perry had Massachusetts in mind.”

    Wendell is a Senior Analyst at the Center for Public Integrity where this was originally posted on September 1, 2011