Tort Reform Didn’t Work in Texas

Patrick Barry – current president of the Rhode Island Association for Justice and also member of the Rhode Island Board of Medical Licensure and Discipline – has a great Op-Ed in response to Richard Weekly’s Op-Ed some weeks earlier.  For health care and legal professionals, this piece is a must-read:

RICHARD WEEKLEY’S Oct 20 Commentary piece, “Tort reform helps Texas health care,” is a strange selection to print. Imposing Texas-style, one-size-fits-all caps on awards to the most seriously injured patients would not help improve health care. To the contrary, the truth about the Texas experiment reveals that significant restrictions on patients’ rights lead only to increased cost, increased danger, and poor health care.

Texas is widely considered to have some of the most restrictive civil-justice laws in the country, enacted in 2003. An arbitrary cap of $250,000 (without exception) on non-economic damages, immunity for admittedly negligent acts in “emergency” care, and onerous procedural requirements for even the most qualified and credentialed expert witnesses are viewed by the insurance industry as a model. Six years after these reforms, however, it is clear that the experiment has failed, and that the promises of “tort reform” are and always have been a sham.

Here are the facts about health care in Texas:

Health care in Texas ranks among the overall worst in the nation, according to a recent article in the Dallas Morning News and a study by the Commonwealth Fund.

Texas was ranked last in access to health care statewide, and in a measure of how minorities and low-income patients fared in the state’s medical system.

Texas was given grades of D-plus in Access to Emergency Care, Quality and Patient Safety, and Public Health and Injury Protection by the American College of Emergency Physicians in its 2006 report card.

Texas has some of the highest per-patient costs of care in the country. A recent piece in The New Yorker (“The Cost Conundrum: What a Texas town can teach us about health care,” June 1) by Harvard surgeon and scholar Atul Gawande, M.D., revealed this, and placed the blame on “physician self-referral” for procedures. In Texas, a physician can see a patient in the office, recommend a life-threatening surgery or procedure, and then send the patient to a surgery center, hospital, radiology suite or catheterization lab owned by that same physician. Because the doctor has a direct financial interest in each step of that patient’s care, costs have gone through the roof as patients get more and more needless procedures.

Texas is attracting the worst doctors in the country. Those same doctors find a safe home in a state with notoriously poor professional discipline. At the recent August meeting of the Texas Medical Board, the following doctors were allowed to keep practicing: two doctors convicted for sex crimes against children; two psychiatrists found to have had sexual relations with mental health patients; a neurosurgeon who operated on the wrong body part four times; and a cardiologist found to have performed dozens of invasive procedures with little or no cause. Incredibly, an ER doctor who was too drunk to insert a tube into a patient — a patient who then died — was allowed to practice in Texas, and even got some therapy (Dallas Morning News, Oct. 11).

The doctors who do go to Texas go to the wealthiest communities, leaving desperate rural areas underserved. “Baby, I Lied: Rural Texas is Still Waiting for the Doctors Tort Reform was Supposed to Deliver” (The Texas Observer, Oct. 19, 2007).

Texas-style tort reform does not control costs or improve health care. What it does do is sacrifice a patient’s Seventh Amendment constitutional right to a jury trial in favor of limits chosen by lobbyists and politicians instead of a jury. And by largely eliminating professional accountability, it contributes to the harmful “race to the bottom” of quality and safety.

The only model that Texas provides for Rhode Island and the rest of the United States is in revealing the depths to which corporate interests will stoop to protect profits. Texas has been on the front lines of the war between big business and U.S. citizens for 20 years.

Richard Weekley’s group, Texans for Lawsuit Reform, was brought into existence by the Greater Houston Partnership (the local Chamber of Commerce) in 1994, when the Partnership was led by Enron CEO Ken Lay. That’s right, the same guy. Ken Lay was a major supporter of the TLR group, and on the “Host Committee” of a TLR reception at Weekley’s own home in Houston in 2001. TLR has succeeded in stripping constitutional protections away from Texas consumers, all to the benefit of people like Ken Lay and his cronies. We cannot trust them to write any prescription for this country.

One bright spot in Texas? The seven-year-old Office of Rural Community Affairs, which gives doctors stipends of up to $15,000 a year for residency practice after medical school in underserved areas. A separate program uses $112,500 a year in interest from the state’s share of the massive tobacco lawsuit settlement to recruit and retain nurses and physical therapists in underserved areas. Another $2 million in tobacco money is distributed by the office to small rural hospitals.

The kicker? The tobacco-settlement money used to fund these public-health programs was, of course, obtained by trial lawyers — the very same folks Weekley demonizes in his quest for greater corporate profits.

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4 responses to “Tort Reform Didn’t Work in Texas

  1. Your article is filled with leaps in logic, some using what amounts to anecdotal incidents. For example:
    “The doctors who do go to Texas go to the wealthiest communities, leaving desperate rural areas underserved. “Baby, I Lied: Rural Texas is Still Waiting for the Doctors Tort Reform was Supposed to Deliver” (The Texas Observer, Oct. 19, 2007).”
    These areas were underserved to begin with, but according to reports, they’re slowy becoming more served. But “underserved” is a broad category to begin with. You can’t expect dozens of counties to suddenly have experts flooding their area within a few years.
    “Texas is attracting the worst doctors in the country. ”
    You made this statement and then, for support, mentioned a HANDFUL of physicians that performed single case incidents; four of which(while dispicable) had nothing to do with practicing medicine and whose specific cases may very well be nebulous, while again providing no sources for these claims.
    Alot of the arguments against tort reform can be chalked up to the massive illegal immigrant population we have; this country is losing $11 billion a year in health care expenditures to this demographic, much of which is concentrated in specific states, such as Texas, Florida, and California. So yes, availability of care is going to be limited for that reason alone. Cost is going to be higher due to the necessary cost shifting.

  2. May I commend you on your article regarding tort reform in Texas. You are absolutely correct in describing the horrendous effect tort reform has had on victims of medical malpractice. Texas has declared that if you are killed by medical mistakes, your life is only worth $250,000, less anywhere from $50,000 t0 $150,00 for legal fees and 40% for attorney’s fees which leaves …….NOTHING for your pain and suffering and, in many cases, death. The doctor(s) are not held accountable for their mistakes. Doctors and insurance companies benefit from tort reform. Those killed and maimed are the losers. I think that if a doctor is guilty of gross negligence, he should be charged with negligent homicide or manslaughter. That is the only recourse that tort reform victims may have to receive some kind of justice.

  3. torts are a substitute for street justice.
    in my opionion someone immune from tort liablility should carry a gun.
    when 7 amendment rights are denied, it’s time to defer to the second.

  4. Cilla Mitchell

    Tort Reform is a legal weapon used in Texas to kill Texans ever since Governor Rick Perry signed the 2003 Tort Reform Act. Tort Reform strangled the 7th Amendment and allowed it to die a slow unceremonious death.

    If you want to view collateral damage left behind Tort Reform inflicted by negligent and reckless doctors, Google: Cleveland Mark Mitchell December 12 1950 – April 26 2008 – youtube.

    If you want to view the face of Dr Javier Andrade who dropped the ball by failing to provide the basic standard of care to my husband in a Galveston, Texas emergency room and died shortly thereafter, Google: Why did you drop the ball Dr Andrade? He is free to practice medicine at a New York Bariatric Group because the Texas Medical Board failed to police after their own and allowed countless of doctors to injure or kill Texans without accountability.

    Are we sacrificing fundamental constitutional liberties secured in the Bill of Rights to protect a few bad doctors like Dr Javier Andrade with Tort Reform?
    Yes, we are.

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