Medical Malpractice Tort Reform in Texas

Texas passed an extensive anti-patient reform of its medical malpractice laws in 2003.

How’s it going for them?

Public Citizen says that "while litigation over malpractice in Texas has plummeted since the caps were imposed, residents of Texas (except for people with financial connections to liability insurance companies and, to a lesser extent, doctors) have realized few, if any, benefits. Instead, the health care picture in Texas has worsened significantly by almost any measure."

Public Citizen found that since the 2003 law was passed:

  • Medicare spending in Texas has risen far faster than the national average. Per enrollee spending for Medicare’s two main programs ranked second-highest among the 50 states in 2009. In 2003, Texas ranked seventh. In light of the steep reduction in litigation that has occurred in Texas since 2003, these figures contradict the theory that medical malpractice litigation is driving health care costs.
  • Medicare spending specifically for outpatient services in Texas has risen even more steeply compared to national averages
  • Premiums for private health insurance in Texas have risen faster than the national average.
  • The percentage of Texans who lack health insurance has risen, solidifying the state;s dubious distinction of having the highest uninsured rate in the country.
  • 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.

Of course, there were some winners: medical liability insurance companies and physicians.

  • The state’s largest provider of medical liability insurance advertises that doctors’ premiums (including rebates) were 50.5 percent lower in 2010 than in 2003. But the malpractice payments that insurance companies are required to make have fallen far faster. This suggests that insurance companies have reaped a windfall from the liability caps because the amount they pay out has decreased considerably more rapidly than the amount they take in.
  • Payments on behalf of Texas doctors for malpractice were 64.8 percent lower in 2010 than in 2003. Adjusting for inflation and population growth, payments fell by 74.1 percent.

Who was the Governor of Texas who pushed for the restrictions on the patient’s right to trial by jury? Rick Perry.

These findings are no big surprise to anyone who has ever thought through the issue, Whether tort reform targets malpractice victims in particular or tort victims as a whole, its only goal is to protect wrongdoers and increase the profits of those that insure them. Twenty-five years ago, the insurance companies were on the front-line of this fight. They quickly figured out (they are pretty smart – there is a reason that they own all the big buildings) that they were not the best advocates for the cause, so they funded doctors and "small businesses" to fight the fight. Legislators, always eager to help doctors and small businesses, bought toe tort reform line and limited the rights of their constituents. 

Will the worm turn? Of course. Any time soon? I doubt it. A pro-business, anti-consumer trend has taken over the Legislature of Tennessee. All too many legislators from both parties will do damn hear anything to secure a promise of future minimum wage, no benefits or jobs for Tennesseans. Knowing this, the tort reformers offer that hope – if they new employer can be shielded from full responsibility for its carelessness.

What will cause a change? As more and more people are harmed by anti-patent laws, legislators will hear from them. Legislators will have personal experiences that will cause them to see the error of their ways. Doctors and other health care providers will become malpractice victims, and learn that the judicial system is not the open checkbook that they have been told it is. All of this will take time. Lots of time. More time than I have left at the Bar.

But it will happen.