There's no doubt that 2003's major medical-malpractice reforms dramatically cut both the numbers of med-mal suits in Texas and doctors' med-mal insurance rates. But there's disagreement about its affect on the state's physician population.
In 2003, when the Texas Legislature debated House Bill 4, supporters and opponents predicted the impact. Supporters said HB 4 would retain and attract physicians and improve patients' access to care. Opponents said it would prevent certain plaintiffs with legitimate claims from finding lawyers to represent them.
What really happened during 10 years of tort reform?
To answer the question, Texas Lawyer talked with: three med-mal plaintiffs' lawyers; three defense attorneys; two lawmakers; the head of the tort reform group Texas Alliance for Patient Access; the president of the Texas Medical Association; and a law professor who has studied HB 4's impact. We also reviewed four academic studies and collected data showing trends in the numbers of med-mal claims and payments, med-mal insurance rates and the physician population.
Among other things, HB 4 put a $250,000 cap on noneconomic damages for each negligent doctor or nurse involved, plus $250,000 each for up to two health-care facilities. Other provisions required plaintiffs to file expert reports, said they only recover health-care costs they actually paid, and set a higher standard to prove an alleged med-mal injury from an emergency room.
"This is a public policy argument: What is best for the whole — for the whole of Texas. Do we put a reasonable limitation on noneconomic damages to encourage access to health care? Look what we did: That limitation on noneconomic damages has resulted in a clearly well-documented, massive growth in access to health care in the state," says HB 4 author Joe Nixon, a Houston Republican, who served in the Texas House from 1995 to 2007.
But Rep. Craig Eiland, D-Galveston, who opposed HB 4, says he thinks improving health care wasn't a goal.
"I think the goals were to lower the number of claims and lawsuits and lower insurance premiums for physicians, and if that was the goal — it certainly achieved its goal," says Eiland, manager at A. Craig Eiland Attorney at Law PC in Galveston.
Decrease in Suits and Payments
Statewide numbers of med-mal suits aren't available for the past 10 years, but Harris County has tracked the numbers.
Data from the Harris County District Clerk's Office shows that before tort reform, there were 442 med-mal suits in 2001 and 574 in 2002. The number spiked to 1,241 in 2003 before HB 4's effective date. Since then, the average is 227 per year. The two years straddling HB 4's effective date show a 62.89 percent decrease in the number of suits from 2002 to 2004 [See graph, " Harris County Medical Liability Lawsuits"].
A snapshot of the statewide trend comes from examining the total numbers and values of payments by med-mal insurers.
An October 2011 report by the advocacy group Public Citizen concludes that the number of payments in 2003 was 1,093 and in 2010 it fell to 510, a drop of 53.34 percent [See chart, Number of Texas Medical-Malpractice Payments on Behalf of Physicians].
The inflation-adjusted value of those payments dropped by 70.27 percent: in 2003 it was $292.73 million and in 2010 it was $87.02 million [See bar graph, " Inflation-Adjusted Value of Texas Medical-Malpractice Payments on Behalf of Physicians"].
In separate research, Charles Silver, professor at The University of Texas at Austin School of Law, has worked with a group of law professors to study HB 4's impact on the med-mal liability system.
"[W]e found that it caused the amount of money flowing through the liability system to just plummet. The number of claims fell. Payouts per claim fell," Silver says. "It took the liability system and turned it to something worse than a paper tiger."
Three med-mal plaintiffs' lawyers and three defense lawyers all say the cases they see, post-reform, generally involve a plaintiff who is a wage earner and claims economic damages. They all say it's less common to see plaintiffs that only claim noneconomic damages.
Tommy Fibich, partner in Fibich, Hampton, Leebron, Briggs & Josephson in Houston, says he thinks HB 4 was an "outrageous affront" to Texans.
"People don't know it till they go to the doctor or hospital and find their care was bad, and they were harmed, and can't do anything about it," says Fibich.
Paula Sweeney, of counsel at Slack & Davis in Dallas, says she turns down "hundreds" for each one case she accepts.
"It is an incredibly disheartening to be in the position I find myself in. . . . [W]e have to be the ones to explain that to people: that your legislature said you can't be compensated in this state," she says.
Sweeney says for those cases, usually the cap is $250,000 for a doctor's negligence. Occasionally, one health-care facility was also negligent and the cap is $500,000.
Tommy Jacks, partner in Fish & Richardson in Austin, says in 2003 he found the average out-of-pocket expenses for his med-mal cases was $100,000. Fibich and Sweeney say their costs now range from $30,000 to $50,000.
All the plaintiffs' lawyers explain that with a $250,000 cap, there's not enough money for the plaintiff to keep after subtracting expenses and a typical contingency attorney fee of $100,000.
"When you take away the ability to hold physicians and hospitals and others accountable in court, and you don't meaningfully beef up other mechanisms for enforcing standards, then I think the [health-care] system suffers," says Jacks, who quit practicing med-mal, partly because of HB 4.
Fibich, Jacks and Sweeney all add that HB 4 also bars cases where someone was hurt in an emergency room, because it's nearly impossible to prove a doctor acted with "willful and wanton" negligence.
"Unless you have a stoned doctor, or drunk . . . you're not going to get that proof," Sweeney says.
The three med-mal defense lawyers confirm they see fewer children and elderly plaintiffs, but each one disagrees that HB 4 specifically excludes those plaintiffs.
"I think there is a lot of opportunity to represent patients within the noneconomic cap if the case is handled in an efficient and well-fulfilled fashion," says Michael Wallach, shareholder in Wallach & Andrews in Fort Worth.
David Davis, founding shareholder in Davis & Wright in Austin, says some plaintiffs' lawyers still handle those claims by using just one expert and a ready-to-go damages model to resolve a matter before filing suit.
Mac Stewart, partner in Stewart Strong in Dallas, says, "An aspect of that trend of cases not being accepted is being driven by the economics of the practice of law, as opposed to purely the tort reform statue."
Stewart says he's seen a decrease the number of "weak, frivolous cases."
"In our experience, the cases that are being filed now have been more carefully screened, before they have been filed, and have more merit," Stewart explains.
Davis says he never saw "frivolous lawsuits" before HB 4, but he thinks the bill did eliminate cases, "that weren't strong liability cases."
Nixon, partner in Beirne, Maynard & Parsons in Houston, says he thinks HB 4's expert report requirement is responsible for the drop in suits, because it, "actually requires people to file a claim for which there is evidence of some negligence."
When asked to respond to the claim that the damages cap forces lawyers to turn away certain plaintiffs, Nixon says he disagrees and he's never seen "documented, verifiable" studies to support such statements.
"If it's true, I think people ought to be putting it together so that whatever current body that decides public policy can alter or formulate some other legislation that would allow people to receive fair and just compensation for their injuries. I'm not trying to keep anyone out of the courthouse that needs to be compensated," he says.
Disagreement About Physician Growth
Supporters of HB 4 claim the bill has increased the physician population; a research study by four doctors reached a similar conclusion. Silver and his law-professor colleagues disagree.
The doctors' research says the number of physicians, compared to the Texas population, "increased significantly" because of tort reform. From 2002 to 2012, the Texas population grew 21 percent but the physician population grew by 44 percent, claims the Sept. 29, 2012, article, "Tort Reform Is Associated with Significant Increases in Texas Physicians Relative to the Texas Population."
Using data from the Texas Medical Board, the authors conclude there was "a 2-fold greater growth" in physician population after tort reform. The article notes that the data doesn't "show causation" and it lists potential factors other than tort reform: the economy, growing medical school classes and expanded academic medical centers.
Lead author Dr. Ronald Stewart, professor and chair of surgery at the University of Texas Health Science Center in San Antonio, didn't return an email or telephone call seeking comment.
Silver says that if doctors really flooded the state after tort reform, there would be a "sharp increase" in the physician population compared to the general population, but, "The rate of growth was actually faster in the pre-2003 period than in the post-2003 period."
The law professors note in their research that Texas Medical Board data may overstate the number of doctors that actually treat patients. Instead, they used "direct patient care physician" counts from the Texas Department of State Health Services [See line graph, " Texas Direct Patient Care Physicians per 100,000 Population"].
The paper compares the pre- and post-reform growth rates in Texas' physician population per capita, and compares Texas to nationwide trends, says the June 2012 article, "Does Tort Reform Affect Physician Supply? Evidence from Texas."
The research found, "no evidence that the number of active Texas physicians per capita is larger than it would have been without tort reform. Any effect of tort reform is too small for us to measure."
The paper continues, "It is possible that but for tort reform, the trends during 2004-2011 would have been worse."
Nixon says he thinks that such studies "ignore the numbers."
"The growth in doctors has clearly outpaced the growth in population," he says.
Jon Opelt, executive director of the Texas Alliance for Patient Access, says he acknowledges some physician growth is related to the state population, but he thinks the physician growth goes "above and beyond."
"Though we claim that growth is not entirely due to tort reform, we believe tort reform has been a significant influence in bringing doctors to Texas," he says.
Opelt writes in an email that after tort reform: eight counties gained their first orthopedic surgeon; 46 counties added their first ER doctor; 15 gained their first cardiologist; and 35 rural counties added an obstetrician.
He says the Texas Medical Association surveyed its members and learned that out-of-state doctors who moved to Texas reported that the medical liability climate was "a significant factor."
Dr. Stephen L. Brotherton, president of the Texas Medical Association, says doctors consider liability when they decide where to practice.
"If I'm going to practice anything, not just medicine, I can go here [to Texas] and my cost of doing business is less, and the chance of me losing my life savings due to a lawsuit is less," says Brotherton, an orthopedic surgeon at the Texas Health Care Bone and Joint Clinic in Fort Worth. "What would you do, logically?"