Tort reform still splits doctors, lawyers
Houston Business Journal - September 29, 2006: by Mary Ann Azevedo
Houston orthopedic surgeon Dr. Terry Clyburn says passage of Proposition 12 gave him incentive to continue performing high-risk procedures. "Several years ago, I was very seriously considering stopping the higher-risk part of my practice and simply doing straightforward surgical procedures because I was very disheartened," says Clyburn, who specializes in joint replacement and adult reconstructive surgery at The University of Texas Health Science Center.
Houston attorney John Eddie Williams, who actively campaigned against the passage of Proposition 12, says consumers are getting the short end of the tort reform stick.
"We passed Proposition 12 in order to help Texas families," says Williams. "We were promised there would be savings all around, and when I look at the health care costs that I pay for my employees, they've gone up. Doctors were promised savings. I don't think they've seen much savings. Consumers haven't seen any savings."
Three years after passage of medical tort reform by the Texas Legislature, proponents and opponents continue to make many of the same arguments for and against the landmark bill.
Houston physicians generally give a thumbs up to the impact of tort reform. Some statistics support their case.
Placing a cap on jury awards for judgments in malpractice suits has attracted new outside carriers as well as doctors from other states.
The Texas Medical Board is anticipating a record 4,500 applications for new physician licenses this year. The number is 40 percent greater than in 2005, the board's busiest year on record.
Dr. Donald Patrick, executive director of the state board, calls medical tort reform the "only one viable hypothesis" to explain the jump in applications.
Plaintiff attorneys take a more negative view. They note Texas continues to carry the country's highest number of uninsured people. They also claim Proposition 12 has made it more difficult for malpractice victims with legitimate cases to find attorneys.
Jim M. Perdue Jr. says the vast majority of his practice was medical malpractice cases before tort reform. "Now they're still the majority, but don't represent nearly as much of our business." says Perdue who practices with his father, Jim Perdue Sr., at The Perdue Law Firm. He says those most affected by Proposition 12 are the elderly, children and stay-at-home moms who can't recover lost wages. Says Perdue: "They have had their rights truly cut because of the way these caps operate. Unfortunately, this law has affected those who are the most seriously injured and their ability to recover."
Changing litigation climate:
The centerpiece of Proposition 12 was a $250,000 cap on judgments for non-economic damages such as pain and suffering in health care liability cases, (combined with malpractice insurance market reforms and increasing the disciplinary authority of the Texas Board of Medical Review and Licensure.)
Dr. Steven Gartzman, an emergency room physician at Christus St. Catherine Hospital in Katy, believes tort reform literally kept specialty medical practices alive. "It's saved medicine in Texas," says Gartzman. "We'd be in deep, deep trouble without tort reform. People would literally die without it. There would not be enough specialists to treat the life-threatening emergencies we have every day."
Orthopedic surgeon Clyburn says Proposition 12 made a big difference in the way he approaches his work. Clyburn says he spent a lot of time counseling high-risk patients who slammed him with lawsuits in several cases. He has not been named in any litigation since Proposition 12 passed, and he feels more confident in prescribing treatments. "I'm also comfortable that the patients who really need this level of care are able to get it," Clyburn says.
Tort reform has allowed Dr. James Key to rein in the expense of liability insurance. "It's been nothing but a boon," says the chief of ophthalmology at St. Luke's Episcopal Hospital. "Proposition 12 enabled a small group practice at St. Luke's to get costs under control and seriously think about adding another new partner to the practice."
Before tort reform a new doctor in his practice paid around $20,000 in the first year for liability insurance, a figure Key acknowledges is "little" compared to more high-risk specialties. First-year coverage for a starting physician now costs about $8,000 a year. Key, who has testified as an expert witness in a number of lawsuits, doesn't think that Proposition 12 has eroded a patient's ability to recover from the cost of illness and the economic damages of any malpractice. "It's cut down on huge awards for pain and suffering," says Key. "But nobody is out any true disability because of Proposition 12."
Questioning caps:
Attorney Williams doesn't agree. He contends malpractice patients have a more difficult time finding lawyers to take their cases. The cap at times leaves little compensation for attorneys, he says, and insurance companies have less incentive to settle. Williams also questions who has reaped the rewards. "I don't think in any way has it done anything for families in Texas. All it's done is actually help insurance companies," he says. Adds Williams: "It sounds to me like we were sold a bill of goods and got bamboozled a little bit."
Plaintiff attorney Perdue contests claims that Proposition 12 has cut down on frivolous lawsuits. Judgment caps do nothing to fight frivolous cases, Perdue charges, but only make some economically unfeasible. He says he turns down a case "that would have been a viable and legitimate death case under the old law" every other week. "If a case is going to require two or three experts to prosecute and it's going to cost over $100,000 to prosecute, it will be tough for victims or their families to find a lawyer," Perdue explains.
But he is not giving up. "I'd like to say they haven't run me out of the business yet. And I'm not going to let them," Perdue says.
Houston orthopedic surgeon Dr. Terry Clyburn says passage of Proposition 12 gave him incentive to continue performing high-risk procedures. "Several years ago, I was very seriously considering stopping the higher-risk part of my practice and simply doing straightforward surgical procedures because I was very disheartened," says Clyburn, who specializes in joint replacement and adult reconstructive surgery at The University of Texas Health Science Center.
Houston attorney John Eddie Williams, who actively campaigned against the passage of Proposition 12, says consumers are getting the short end of the tort reform stick.
"We passed Proposition 12 in order to help Texas families," says Williams. "We were promised there would be savings all around, and when I look at the health care costs that I pay for my employees, they've gone up. Doctors were promised savings. I don't think they've seen much savings. Consumers haven't seen any savings."
Three years after passage of medical tort reform by the Texas Legislature, proponents and opponents continue to make many of the same arguments for and against the landmark bill.
Houston physicians generally give a thumbs up to the impact of tort reform. Some statistics support their case.
Placing a cap on jury awards for judgments in malpractice suits has attracted new outside carriers as well as doctors from other states.
The Texas Medical Board is anticipating a record 4,500 applications for new physician licenses this year. The number is 40 percent greater than in 2005, the board's busiest year on record.
Dr. Donald Patrick, executive director of the state board, calls medical tort reform the "only one viable hypothesis" to explain the jump in applications.
Plaintiff attorneys take a more negative view. They note Texas continues to carry the country's highest number of uninsured people. They also claim Proposition 12 has made it more difficult for malpractice victims with legitimate cases to find attorneys.
Jim M. Perdue Jr. says the vast majority of his practice was medical malpractice cases before tort reform. "Now they're still the majority, but don't represent nearly as much of our business." says Perdue who practices with his father, Jim Perdue Sr., at The Perdue Law Firm. He says those most affected by Proposition 12 are the elderly, children and stay-at-home moms who can't recover lost wages. Says Perdue: "They have had their rights truly cut because of the way these caps operate. Unfortunately, this law has affected those who are the most seriously injured and their ability to recover."
Changing litigation climate:
The centerpiece of Proposition 12 was a $250,000 cap on judgments for non-economic damages such as pain and suffering in health care liability cases, (combined with malpractice insurance market reforms and increasing the disciplinary authority of the Texas Board of Medical Review and Licensure.)
Dr. Steven Gartzman, an emergency room physician at Christus St. Catherine Hospital in Katy, believes tort reform literally kept specialty medical practices alive. "It's saved medicine in Texas," says Gartzman. "We'd be in deep, deep trouble without tort reform. People would literally die without it. There would not be enough specialists to treat the life-threatening emergencies we have every day."
Orthopedic surgeon Clyburn says Proposition 12 made a big difference in the way he approaches his work. Clyburn says he spent a lot of time counseling high-risk patients who slammed him with lawsuits in several cases. He has not been named in any litigation since Proposition 12 passed, and he feels more confident in prescribing treatments. "I'm also comfortable that the patients who really need this level of care are able to get it," Clyburn says.
Tort reform has allowed Dr. James Key to rein in the expense of liability insurance. "It's been nothing but a boon," says the chief of ophthalmology at St. Luke's Episcopal Hospital. "Proposition 12 enabled a small group practice at St. Luke's to get costs under control and seriously think about adding another new partner to the practice."
Before tort reform a new doctor in his practice paid around $20,000 in the first year for liability insurance, a figure Key acknowledges is "little" compared to more high-risk specialties. First-year coverage for a starting physician now costs about $8,000 a year. Key, who has testified as an expert witness in a number of lawsuits, doesn't think that Proposition 12 has eroded a patient's ability to recover from the cost of illness and the economic damages of any malpractice. "It's cut down on huge awards for pain and suffering," says Key. "But nobody is out any true disability because of Proposition 12."
Questioning caps:
Attorney Williams doesn't agree. He contends malpractice patients have a more difficult time finding lawyers to take their cases. The cap at times leaves little compensation for attorneys, he says, and insurance companies have less incentive to settle. Williams also questions who has reaped the rewards. "I don't think in any way has it done anything for families in Texas. All it's done is actually help insurance companies," he says. Adds Williams: "It sounds to me like we were sold a bill of goods and got bamboozled a little bit."
Plaintiff attorney Perdue contests claims that Proposition 12 has cut down on frivolous lawsuits. Judgment caps do nothing to fight frivolous cases, Perdue charges, but only make some economically unfeasible. He says he turns down a case "that would have been a viable and legitimate death case under the old law" every other week. "If a case is going to require two or three experts to prosecute and it's going to cost over $100,000 to prosecute, it will be tough for victims or their families to find a lawyer," Perdue explains.
But he is not giving up. "I'd like to say they haven't run me out of the business yet. And I'm not going to let them," Perdue says.
posted by Bob Coli, MD at 6:49 AM
