Tort reform brings doctors back to Texas

The Senate is once again taking up the issue of medical justice reform. If senators want to expand access to health care by increasing the number of physicians and lowering costs, they need to look at Texas. In the summer of 2003 the Texas Legislature enacted important medical litigation reform. A voter-approved constitutional amendment, Proposition 12, followed later that year to solidify the changes. As a result, physicians are returning to the state, particularly in underserved specialties and counties. Insurance premiums to protect against frivolous lawsuits have declined dramatically, with the state's largest carrier reporting declines up to 22% and other carriers reducing premiums by an average of 13%. The number of lawsuits filed against doctors has been cut almost in half.

Prior to the successful reform effort, personal injury lawyers had put Texas doctors on the run. According to the Texas Department of Insurance, the frequency of claims was increasing at a rate of 4.6% annually--between 1996 and 2000 alone, one out of four doctors was sued. These surging legal and insurance bills reduced patient access to health care. Texas fell to 48th out of 50 in physician manpower. There were 152 medical doctors per 100,000 citizens, well below the U.S. average of 196. Some 158 counties had no obstetrician. Good, competent doctors were closing their doors, unable to afford the cost of insurance.

Other industry players suffered as well. Hospital premiums to protect against the onslaught of lawsuits more than doubled between 2000 and 2003. From 1999 to 2002, the annual per-bed cost of litigation-protection insurance in nursing homes increased from $250 to $5,000--a factor of 20! Texas seniors were being displaced and deprived of care, as nursing homes closed, unable to afford the cost of escalating insurance premiums.

At the core of House Bill 4, led with remarkable courage and dedication by state Rep. Joe Nixon and state Sen. Jane Nelson, was a hard $250,000 cap on noneconomic damages for all physicians, with a separate $250,000 cap on noneconomic damages payable by hospitals and other providers. The law keeps doctors, hospitals and nursing homes liable for all economic damages assessed by a jury. HB 4 was modeled on California's successful 1975 Micra law, still on the books, keeping litigation-related costs under control and allowing competent doctors and hospitals to continue providing care.

Additional provisions of HB 4 included periodic payments for all awards greater than $100,000, procedural changes to address claim frequency, and Good Samaritan protections. This new law passed by a two-thirds majority in both chambers of the legislature and was integrated into the Texas constitution by voters later that same year. Importantly, the constitutional amendment prevents activist judges from ignoring the law and imposing a subjective opinion.

So what has happened since September of 2003, when the new law went into effect? After years of losing doctors, Texas has added nearly 4,000 since passage of Proposition 12, including 127 orthopedic surgeons, almost 300 anesthesiologists, over 200 emergency room physicians, 146 new obstetricians, 58 neurologists and 24 neurosurgeons. The Texas Medical Board is anticipating some 4,000 applicants for new physician licenses this year alone--double last year's numbers, and 30% more than the greatest growth year ever.

The threat of lawsuits has been a particular barrier to attracting and retaining pediatric specialists. Since 2003, Texas has gained 20 pediatric cardiologists, 14 pediatric oncologists, almost 50 new perinatologists (obstetricians specializing in high-risk pregnancies), 10 pediatric surgeons and 8 new pediatric endocrinologists.

Medically underserved counties in Texas are benefiting as well. Jefferson, Webb and Victoria Counties, as well as the counties of Cameron and Hidalgo in the Rio Grande Valley, have all experienced an influx of physicians. Additionally, the market for insurance to protect health-care providers against the cost of lawsuits has become more robust and competitive. In 2002 there were only four companies writing policies. Today that number has more than tripled. And all of these trends are expected to continue.

Gov. Matt Blunt and the Missouri Legislature enacted similarly tough medical liability reform in 2005. The state's citizens can expect to benefit from more doctors with lower liability premiums in the coming years as well, assuming no meddling by the courts.

The legislation to be considered by the Senate would ensure more predictability in our justice system by reining in the most egregious abuses by personal injury lawyers. In deference to states' rights, it does not pre-empt the noneconomic damage caps in place in 26 states whether they are higher or lower than the proposed federal standard. Thus, Texas, California, Missouri and Mississippi with strong caps will not be affected; similarly, a state like Nevada with weak damage caps also will not be touched. The Senate bill would apply only to states that currently have no damage caps in place.

Proper medical justice reform plays a central role in ensuring the availability and affordability of health care for families everywhere, and our elected officials should not underestimate how deeply this issue resonates with the American people. A March 2006 Gallup poll showed that "availability and affordability of health care" topped a list of 12 issues of most concern to Americans. A full 68% of respondents said they worried about this a "great deal," compared to 51% who were worried a great deal about social security, the next highest issue area.

In the coming days, our senators in Washington will have a chance to stand up with America's doctors and patients against the personal injury lawyers. Expect a brawl. On one side will be the lawyers, frantically attempting to protect and pad their wallets, while driving up costs for the American people and limiting our access to health-care providers. On the other will be the positive, pro-patient, pro-health-care story from Texas, a state which has taken an important first step toward creating a 21st-century health justice system that meets the needs of doctors and patients alike.

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BUREAUCRATIC NASTINESS IN CALIFORNIA PUBLIC MEDICINE

An orthopedic surgeon and tenured professor at the University of California, Davis, Medical School is suing the UC Davis chancellor and the medical school's dean emeritus, claiming he was subjected to retaliation for blowing the whistle on irregularities at a university clinic in Sacramento. In a lawsuit filed Thursday in Sacramento federal court, Dr. Robert M. Szabo alleges that a long-simmering feud between him and Dr. Joseph Silva, then the dean of the medical school, boiled over two years ago when Szabo complained about another physician's billing practices and the way Medi-Cal patients were being scheduled at the university's primary care clinic on J Street in midtown Sacramento.

On May 12, 2004, the day after Szabo was notified that his complaint was unsubstantiated, Silva ordered Szabo's academic and clinical offices moved off the UC Davis Medical Center campus to a primary care clinic in Carmichael and eliminated Szabo's block of operating-room time at the medical center, the suit alleges.

In November a three-professor panel of the university's Academic Senate, after conducting a hearing, sustained Szabo's grievance and found inappropriate conduct by Silva in retaliating against Szabo for his whistle-blower complaint, the suit alleges. It alleges that, on Feb. 9, the hearing panel reaffirmed its decision in response to the university's request for reconsideration. But, on March 29, "despite overwhelming evidence of willful misconduct and retaliation by former Dean Silva, Chancellor (Larry) Vanderhoef rejected the findings" of the hearing panel, the suit alleges.

The suit says that "power was abused by defendants Silva and Vanderhoef to punish and retaliate against Dr. Szabo for exercising his right of free speech protected" by the Constitution's First Amendment and those provisions of California's Constitution and statutes that protect whistle-blowers. Szabo is seeking $2.5 million general damages and $1 million punitive damages. "Dr. Szabo has been damaged in his reputation, professional standing, and has been subjected to emotional distress and upset and humiliation as he watched and experienced the unlawful, discriminatory and willful acts of the defendants," Szabo's attorney, Donald Heller, wrote in the complaint.

UC Davis spokeswoman Lisa Lapin said Thursday that Silva and Vanderhoef have not yet seen the complaint and would have no immediate comment.

The Academic Senate's three-member hearing panel found the evidence "supports the finding that Dean Silva acted out of personal animus toward Dr. Szabo in making the relocation decision," according to the panel's report. The report, which is attached to the complaint as an exhibit, notes that Silva claimed when he made the relocation decision that he was unaware that Szabo had made a whistle-blower complaint. However, the report states, "the very public and widespread knowledge of Dr. Szabo's complaint as early as late January and early February 2004 undermines Dean Silva's credibility on this point." "We find that, based on the totality of the circumstances, Dr. Szabo demonstrated by a preponderance of the evidence that his filing of a whistle-blower complaint was a contributing factor in Dean Silva's decision to relocate Dr. Szabo, and that the relocation was retaliatory."

The panel recommended Szabo's grievance be sustained and that he be reimbursed attorney's fees incurred pursuing the grievance. The university asked the panel to reconsider its decision, but the panel stood firm in its findings and recommendations. "Let us be clear," the panel said in its response to the university, "the consequences of the dean's decision had such a negative impact on the care of patients and the training of the fellows that animus is the only explanation the panel can come up with to explain why the dean made this change."

But Vanderhoef, in a March 29 letter to Szabo, rejected the panel's findings and recommendations and refused to uphold the doctor's grievance. "Absent findings of misconduct against Dean Silva, I do not find a preponderance of the evidence supports a conclusion that your rights and privileges as a faculty member have been violated," Vanderhoef wrote. "I find no persuasive evidence to support a conclusion that Dean Silva's actions were based on personal animus. "The factors cited by the (panel) in support of its finding are not persuasive. "I find no compelling evidence to indicate that Dean Silva was aware of your (whistle-blowing) at the time the relocation decision was being considered. Instead, only argument and inference is offered to support such a conclusion. "Further, even if Dean Silva were aware of your whistle-blower report ... there is no persuasive evidence that he had any personal animus or other motivation to retaliate against you based upon such information."

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For greatest efficiency, lowest cost and maximum choice, ALL hospitals and health insurance schemes should be privately owned and run -- with government-paid vouchers for the very poor and minimal regulation. Both Australia and Sweden have large private sector health systems with government reimbursement for privately-provided services so can a purely private system with some level of government reimbursement or insurance for the poor be so hard to do?

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