Tort Reform Protected: TMA Stops Challenge to Emergency Care Standard

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Law Feature - August 2007  


By  Crystal Conde
Associate Editor  

Four years ago, physicians and medical students banded together against personal injury trial lawyers and urged their patients to vote yes on Proposition 12, a state constitutional amendment that authorized the legislature to enact noneconomic damage caps in medical liability lawsuits. Following a hard-fought crusade, the efforts paid off, resulting in a significantly more favorable medical liability climate for the state.

Today, physicians enjoy lower medical liability premiums, more predictability in the risk assumed, and the resulting increase in competition among insurance carriers. The state also is seeing overwhelming interest from out-of-state doctors wishing to join practices here as tort reforms make Texas more attractive to new physician recruits. Fewer lawsuits and more doctors mean patients have more access to care.

But trial lawyers were back at the Capitol this year trying to pass Senate Bill 468 to reduce the burden of proof in emergency medical care cases. The bill, sponsored by Sen. Rodney Ellis (D-Houston), would have lowered the emergency standard for liability from "willful and wanton" - as established in the 2003 law - to "simple negligence with a clear and convincing standard of proof."

The bill went nowhere. Working to protect 2003 health care liability reforms, the Texas Medical Association coordinated physician meetings with local government officials and legislators to send a message that such a change would adversely affect patients' access to emergency care. With help from the Texas Alliance for Patient Access (TAPA) and the Texas Hospital Association (THA), the campaign proved successful, and SB 468 never could achieve the two-thirds vote necessary to be heard on the Senate floor.

Passage of SB 468 would have been bad news for patients and the physicians who respond to emergency medical situations, says TAPA Executive Director Jon Opelt. Because physicians often are unfamiliar with the medical history of patients who go to the emergency room, Mr. Opelt says, they need additional protection offered under the 2003 reforms.

A watered-down standard of proof would have made it easier for physicians to be sued, physicians would have faced greater obstacles in providing quality care, and patients would have potentially suffered from understaffed emergency care facilities.

"Those who are affected by this bill are the sickest and most seriously ill patients," Mr. Opelt said. "These patients are in need of lifesaving care, and in emergency situations, doctors are forced to make quick decisions with often limited information. The author of the bill basically attempted to return the law to pre-reform language, and that was unacceptable."

Darren Whitehurst, director of TMA's Division of Public Affairs, credits the association's successful blockage of SB 468 to physicians' grassroots efforts to educate their local legislators about how the bill would have harmed patients' access to high-quality emergency care. "The doctors back home did a great job of bringing the issue to the forefront so it was visible in the Senate," he said.

Austin King, MD, immediate past chair of TMA's Council on Legislation and a member of the TMA Board of Trustees, advises physicians to establish and maintain relationships with legislators.

"All politics are local. It's very important that physicians keep in contact with their local representatives and that they be able to walk in and visit with them," Dr. King said. "They can't wait until they need politicians' support introducing or blocking a bill. It's important to build trust with these leaders so they'll listen to doctors when they need their help."


Victory Through Defeat  

By killing SB 468 before it reached the Senate floor, TMA upheld the 2003 language that requires a "willful and wanton" burden of proof in emergency medical care. According to Mr. Whitehurst, this higher standard for liability requires trial attorneys to show gross, rather than simple, negligence.

Dan Finch, legislative affairs director for TMA, calls the blockage of SB 468 a "cautionary tale" and warns that trial lawyers will continue to try to chip away at protections accomplished through 2003's tort reforms. "The fact that Senate Bill 468 didn't pass probably isn't that surprising," he said. "But we're a little more vulnerable on these issues than we should be at this point in time."

The reason for that susceptibility, says Dr. King, is that trial lawyers are looking for ways to improve business.

"The number of suits trial lawyers have been able to file has dropped significantly. When we had the workers' comp reforms, they forced a lot of the plaintiff's attorneys out of that field. Tort reforms have had a similar effect on trial lawyers," Dr. King said. "They will continue to attack on several fronts. They're not going to have the entire tort reform overturned but will look at small piecemeal areas."

TMA, in conjunction with TAPA and THA, approached the blockage of SB 468 by focusing on patient care, a strategy Dr. King touts as pivotal in stopping the legislation from reaching the Senate floor.

"The main point is to provide the legislators involved with facts as to what actually is going on with tort reforms in place now - the facts of increased access to medical care. We can also document large numbers of doctors moving to Texas because of the medical liability climate here," he said.

In fact, the Texas Medical Board (TMB) is tackling a backlog of about 2,250 license applications and will soon receive some relief, thanks to House Bill 15, which allocates more than $5.2 million to TMB for additional staff and technology upgrades to expedite the physician-licensing process. (See " Law/Legislative Recap .")

But just four years ago, physicians weren't flocking to Texas. Dave Kittrell, MD, chair of the board of the Texas Medical Liability Trust (TMLT) and a San Antonio obstetrician-gynecologist, says many obstetricians and other physicians in high-risk specialties were contemplating an exit from the medical field. Skyrocketing insurance premiums were making it more difficult to continue to practice in the state.

"Tort reform turned everything around 180 degrees. It was the savior of Texas medicine," Dr. Kittrell said. "It saved a lot of doctors who were stopping services."


Preserving the Past  

A team effort led to the tort reform package achieved in 2003. TMLT, TAPA, and many others in the medical community joined TMA and continued to work to preserve the progress made through Proposition 12.

Albert Gros, MD, chair of TMA's Council on Legislation, says preserving tort reform is crucial to improving quality of health care and patient access, while increasing the physician workforce and the number of insurers in Texas. "If tort reform is diluted, in a worst-case scenario, we could return to the situation we had before 2003, when we had a dwindling number of insurance carriers," he said.

Texas now boasts 30 medical liability insurance companies, a drastic increase from the four that would underwrite policies for doctors in 2003. With a current policyholder count of 14,224, TMLT insures more physicians in Texas than any other carrier and has reduced rates four times: 12 percent in 2004, 5 percent in 2005 and 2006, and 7.5 percent this year.

Dr. Kittrell implores physicians to be vigilant in protecting the hard-won tort reform package by fighting proposed legislation like SB 468.

"Anything that our adversaries want to change, it's to make it more advantageous for them," Dr. Kittrell said. "That decreases the appeal of Texas as a good place to practice medicine. Then patients lose, because doctors stop practicing and move to states with a better medical liability environment."

Recognizing the need to continue the fight to defend tort reform, Mr. Opelt cautions: "Since the passage of the 2003 reforms, we have seen a gain in the number of doctors willing to take emergency calls. The situation has improved, but our hospitals still struggle to cover their emergency departments today. That is why it is so important that the 2003 reform language remain intact."

Crystal Conde   can be reached at (800) 880-1300, ext. 1385, or (512) 370-1385; by fax at (512) 370-1629; or by e-mail at Crystal Conde .  



Law/Legislative Recap

TMA worked tirelessly in the 80th Texas Legislature to accomplish its Healthy Vision 2010 goals of protecting the 2003 tort reforms and preventing the creation of new causes of action for physicians and other health care professionals. With coordinated efforts among physicians and health care organizations, medicine emerged victorious, and trial lawyers were unable to weaken Texas' medical liability landscape.

Here is an overview of medicine's accomplishments this session:

  • Gov. Rick Perry vetoed House Bill 3281, known as the paid or incurred bill, on June 15. In a message to members of the Senate and House of Representatives, Governor Perry explained that HB 3281 would have reversed 2003 tort reform language that reasonably limited the amount of medical bills a plaintiff could recover to the amount actually paid or incurred by the individual or the insurer. When determining medical damages in a lawsuit, the governor said, these higher bills would deceive jurors by presenting them with an inflated amount of medical damages. TMA worked hard to ensure the bill that reached the governor's desk excluded medical liability cases.
  • Senate Bill 1560 would have allowed medical liability plaintiffs to recover noneconomic damages per plaintiff instead of per defendant in a wrongful death case. The bill never made it out of committee.
  • House Bill 15 allocates more than $5.2 million to the Texas Medical Board (TMB) for additional staff and technology upgrades to speed up the physician-licensing process. The board is currently experiencing a processing backlog of about 2,250 license applications. The legislation took effect June 15.

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