OP-ED

No Better Care, Thanks to Tort Reform

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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nate ogdenFLPCPCilla MitchellSteveHNorman Chenven, MD Recent comment authors
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Peter1
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Peter1

“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… Read more »

FLPCP
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FLPCP

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… Read more »

Peter1
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Peter1

“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

nate ogden
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nate ogden

“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… Read more »

FLPCP
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FLPCP

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… Read more »

Peter1
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Peter1

“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… Read more »

FLPCP
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FLPCP

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.

Peter1
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Peter1

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… Read more »

FLPCP
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FLPCP

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,… Read more »

Cilla Mitchell
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Cilla Mitchell

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.

rbar
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rbar

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… Read more »

Peter1
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Peter1

“(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/

SteveH
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SteveH

“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.

Norman Chenven, MD
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Norman Chenven, MD

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… Read more »

Lynn in SC
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Lynn in SC

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.