Should Texas Be The Model For Medical Malpractice Reform?

In the last few months, opponents of health care reform have insisted that one key to lowering health care costs is the adoption of “tort reform” by capping the damages that can be recovered in medical malpractice cases.

For some time now, I’ve been urging people to look at the Texas medical malpractice  “experiment”  to see if those claims were right. In 2003, the Texas legislature re-wrote Texas medical malpractice laws and put in place some of the most restrictive caps in the country. And where has it gotten us?

I’ve argued in the past that the Texas experiment proves that damage caps don’t help people. For instance, since the caps were put in place, the cost of health care has increased for Texas consumers. Similarly, Texans were promised that tort reform would significantly increase the number of doctors in areas of the state that traditionally have trouble finding medical care. By and large, that hasn’t occurred.

Now, a new study by Public Citizen not only helps prove my arguments, but shows that the results are even worse than I imagined. Have health care costs gone down since the adoption of Texas’s tort reform laws? No. In fact, the contrary has occurred. Since 2004, per patient Medicare spending (one of the best indicators of health care costs) has risen in Texas at nearly twice the national average. Similarly, tort reform supporters argue that doctors continually run unnecessary tests because they are scared of being sued. But the data shows that the increase in testing expenses in Texas has grown at a much higher rate than the national average.

Surely health insurance premiums for Texas consumers have been getting better since “tort reform”? Wrong again. Texas premiums have increased 144 percent for families since the adoption of tort reform. And that increase is just about at the national average.

Maybe medical malpractice caps haven’t decreased costs, but the reforms must be allowing new doctors to come to Texas, right? Yes and no. The number of doctors has increased since 2003. But that’s misleading. The growth in number of physicians per capita has increased at a much lower rate than we were growing prior to “tort reform.” Similarly, there is little, if any, difference in the number of doctors in the rural parts of area — the areas that really need doctors. In rural areas, the number of direct care physicians per capita is almost identical to what it was in 2003. And by and large, areas that were without various specialists are still without those specialists.

So what are we getting for “tort reform”? As a Dallas news-reporter noted:

So did Texans benefit from “tort reform”?

Doctors, some.

Insurance companies? A lot.

Most Texans probably couldn’t say.

But if you lost your baby after a difficult delivery, tort reform may have taken away your ability to find answers.

 We now have over five years of data showing that medical malpractice caps don’t produce the promised benefits.  The government shouldn’t take the mistakes that we’ve made in Texas and implement them all over the country.

Texas Medical Malpractice Reform and More Docs, part 2

Last week we posted about the New York Times article on the alleged influx of doctors as a result of Texas’s medical malpractice reform.  Since then, the New York Personal Injury Blog has chimed in (with interesting stats that we wish we had thought to look for), and Bill Childs Torts Profs’ Blog has posted related to the study not once, but twice.  And then earlier this week, Professor Anthony Sebek of the Cardozo School of Law pitched in his two cents.

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Medical Malpractice: Avoid Unnecessary Surgeries

One of the byproducts of the national healthcare debate has been an increasing awareness that medical costs are high, at least in part, because of unnecessary surgeries, tests, and other procedures that have been ordered to simply line the pockets of the providers. Recently, our office has received inquiries relating to unnecessary procedures, including unnecessary back surgery, and even more frightening, unnecessary heart surgery.

For this reason, we advise all of our clients and friends to make sure to obtain second opinions before consenting to major surgeries. There is no question that surgeries improve lives and save lives when they are properly indicated, but caution is always warranted when we consent to place our bodies under the knife.

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Patient Tips To Avoid Wrong Site Surgery

Earlier this week, in the post Medical Malpractice, Dead By Mistake, And Wrong-Site Surgery, I promised patient tips for avoiding wrong-site surgeries. I’m carrying out on that promise today. Here are some things that surgical patients can do to avoiid wrong-site surgery:

1. Make sure you know what surgeon is in charge, and communicate with your physician. Most wrong-site surgeries are the result of poor communication.

2. Speak up if you have concerns. It is basic psychology that people are hesitant to question authority figures, such as doctors. But patients and nurses must be willing to question physicians when the patients or nurses have concerns. If something doesn’t look or feel right to you, speak up. We were all told in school that there are no stupid questions. That’s particularly true when your health is on the line.

3. Be patient with the staff. Don’t be upset if each doctor and each nurse ask the same information. A standard protocol requires each staff member to confirm the proper procedure is being done.

4. Pre-mark the spot. If you’re going to have surgery on your right knee, take a permanent marker the night before and mark “NO” on your left knee. You might think this is silly, but a simple Google search turns up studies from physicians trying to pass the blame for wrong-site surgeries on to patients for not properly marking which limb or body part to avoid.

5. Participate in the staff’s marking of the proper site the day of surgery. Make sure that the site is marked before you undergo the anesthesia.

6. Have someone you trust there to be your advocate, and make sure they know which procedure is supposed to be done. Several years ago I had knee surgery to repair a torn ACL. Apparently, I’m susceptible to anesthesia, and I was quickly getting loopy after the first round of anesthesia was administered. Even after that, the hospital staff was trying to have me sign papers. Fortunately, my wife was there to tell them I was in no position to sign documents and to make sure that they continued prepping me for the proper surgery.

Hopefully, you or your loved ones won’t need any surgical procedures, but following these simple steps could help prevent an avoidable medical error.

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Medical Malpractice, Dead By Mistake, and Wrong Site Surgery

Richard Flagg entered Meadowland Hospital in Secaucus, NJ with a diseased lung. Unfortunately, his surgeons accidentlally removed his healthy lung, leaving behind a tumor in his diseased lung. Mr. Flagg survived for three years, attached to oxygen, until the tumor ruptured and he drowned in his blood.

This is one of the stories in the Hearst Group’s Dead By Mistake. And it seems almost far-fetched. Doctors removing the wrong lung? How often could that happen? Much more frequent than you think.

It turns out that Wrong Site, Wrong Side, Wrong Procedure, Wrong Patient surgeries are common. The Archives of Surgery, the official medical journal of surgery associations across the country, did a study and found that almost 3,000 procedures were performed each year where the surgeon operated on the wrong side or site, performed the wrong procedure or operated on the wrong patient. And those are just the reported instances.

The Joint Commission On Accreditation of Healthcare Organizations is a non-profit that accredits and certifies health care organizations nationwide. The Joint Commission asks its members to report and keep track of sentinel events, unexpected events that lead to death or serious injury, and wrong site surgeries are the #1 type of sentinel event recorded.

In May 2003, the Joint Commission hosted a summit on Wrong Site surgeries. After consulting with some of the world’s leading physicians, the Joint Commission established its Uniform Protocol for surgeries. The protocol has three steps: (1) the hospital must make sure it has pre-operation processes in place to ensure the right procedure is being performed; (2) someone must specifically mark the part of the body that is being operated on; and (3) the surgical team must take a “time out” before starting surgery to verify that the proper procedure is about to be performed.

But is it enough? Perhaps not.

Steve Sanford, of the Preferred Physicians Medical Risk Retention Group, contends that the Universal Protocol has several flaws that prevent it from being effective. First, he argues against the shared responsibility advocated by the protocol. Shared responsibility is, in essence, no responsibility. When participants to a surgery think other participants are going to check the proper site, the responsibility goes unfulfilled. Instead, Sanford argues that the surgeon should have the sole responsibility and should know that he or she will be held accountable for the errors — no more suggesting that someone else should have handled it.

Sanford also argues that the protocol is not specific enough and leaves too much interpretation up to individual institutions. If the standard was more concrete and accepted between institutions, it might be easier to follow.

Statistics suggest that Sanford is right. PPM’s statistics show that the number of wrong site surgeries actually increased following the adoption of the Universal Protocol. Other studies made similar findings.

So what do we do? We’ll look at that in a later post.

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Why Isn’t There More Outrage About Medical Malpractice Deaths?

The Hearst family of newspapers and television stations has put together, Dead By Mistake, an unprecedented look at medical malpractice deaths. This was a massive project, and there are several aspects that I want to look at over the next few days, but the focus of today is, “Why Aren’t More People Outraged Over Medical Malpractice Deaths?”

The study found that an estimated 98,000 people die from preventable medical errors each year. How many is that? To put it in perspective, the article noted that:

More Americans die each month of preventable medical errors than died in the terrorist attacks of Sept. 11, 2001.

Or, as Dennis Quaid put it, it’s the equivalent of a full 747 crashing every day.

Or, as those of us that are football fans might think of, it’s the equivalent of a full Darrell K Royal Texas Memorial Stadium being killed.

And to make it worse, in addition to those 98,000 dead, the Centers for Disease Control estimates that an additional 99,000 people a year die from infections acquired from hospitals. That’s almost 200,000 people a year killed by medical malpractice.

And where is the outrage? Sept. 11 has garnered its deserved media attention. And the airwaves over the last few days have been filled with stories about the small plane/sight-seeing helicopter crash. And I can only imagine the media coverage from some disaster wiping out a full DKR, but no one seems to care about medical malpractice.


I’ve seen these types of numbers before, and I’ve seen the pain endured by parents, children and spouses after a medical error takes a life, and I’ve wondered why no outrage. And I still don’t have an answer for it.

If any of you have an answer or thought on it, I’d love to hear it.

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Surgeons: Use Us Because We’re Easy To Sue?

Last week, noted blogger, Doctor Rich had a post examining the American College of Surgeons’ advice regarding medical tourism, where a patient travels outside the United States to obtain medical care. No shocker, but American surgeons aren’t fans of the practice, and they did their best to give reasons why patients should be careful with medical tourism.

For those of us that are plaintiffs’ lawyers, the biggest shocker had to be the physicians’ sudden concern that patients traveling out of the country might have difficulties bringing medical malpractice suits. Dr. Rich writes:

Second, and most astoundingly, Dr. Rich notes – not so much with interest, but more with awe – that the surgeons are beseeching their patients to consider just how difficult it might be to launch a malpractice suit against foreign doctors. (Dr. Rich himself does not know how difficult this would be. Given that we are being so strongly urged these days to merge the American legal system with international law, it might not be much of a problem for long.) Indeed, the potential difficulty in suing foreign doctors appears to be the chief differentiator, and the primary argument in favor of good-old-American-surgery. The surgeons, in essence, are saying, “Let us do your surgery, because we’re easier to sue if we screw up.”

This, from the very body of American physicians who are most at risk for malpractice suits, and who traditionally have been most vociferous in favor of malpractice reform.

This isn’t the first time I’ve heard this argument; in fact, I have a previous post on the subject (A Doctor Touting The Benefits of Texas’s Medical Malpractice System?). And I said it then, and I’ll say it again: I find this appalling. In 2003, when the medical and insurance lobbies simply obliterated the Texas medical malpractice system, the doctors were all over themselves to do anything they could to take away patients’ rights to sue. In 2003, and even earlier, the Texas Trial Lawyers’ Association tried to sit down with the medical associations to work out mutually beneficial legislation that might help meet the needs of the medical lobby while also protecting Texas consumers, and the medical lobby wanted none of it. They simply wanted to take away as many rights as possible. To sit there now and tout the medical malpractice system as a reason to avoid medical tourism is hypocrisy at its best.

I don’t know what the future holds for medical tourism, but I’ll continue to watch and see if the medical lobby continues this disingenuous concern for patients.

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Dallas Morning News: Malpractice Caps Not Reducing Health Costs

Today’s Dallas Morning News ran a story that looked at whether the cost of health care has declined since the adoption of Texas’s medical malpractice caps.  The evidence concludes that the caps aren’t reducing health care costs for consumers.

Six years after the caps were passed, the doctors have enjoyed lower insurance rates (though rates haven’t decreased as much as they rocketed up shortly before the caps were passed) and Texas has more doctors (though, again, there is debate about why the numbers have increased), but consumers aren’t getting any additional relief.  In Texas, health insurance premiums continue to rise dramatically, and Medicare spending, an bellweather for medical costs, have increased dramatically.

And Texas isn’t alone.  The Dallas Morning News article cites a study by University of Alabama researchers that looked at 27 states, including Texas, that had caps on non-economic damages also concluded that tort reforms have not led to health care cost savings for consumers.  As Michael Morrisey, a professor of health economics at the University of Alabama put it:

The results of the study suggest that there are no insurance premium savings that accrue to consumers.  Are there other benefits to consumers?  If these cannot be identified, it is difficult to see a justification for the loss of legal rights.

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Study Finds Texas Medical Malpractice Reforms Are Discriminatory

In 2003, the Texas legislature adopted sweeping medical malpractice reforms, including putting a cap on the amount of non-economic damages that plaintiffs could recover. Up unitl now, we’ve had a lot of anecdotal evidence that the caps were unfair, but earlier this week, four law professors (including three from the University of Texas school of law) released a study confirming the anecdotal stories.

The professors looked at how the cap was applied to jury verdicts across the state since the passage of HB4, the medical malpractice statute. I think their statistics were stunning. In cases won by the plaintiff, the damages were reduced by the caps in 47% of the cases. Jury verdicts are supposed to be protected. The jurors are the ones that see the evidence, see the victims and get a first hand look at how the malpractice has impacted the victims. The jurors are in the best position to truly determine the plaintiff’s loss. And, unfortunately, in almost half the cases where the jury finds that the doctor was negligent, the caps mean that the plaintiff isn’t being fully compensated, in the eyes of the jury, for his or her loss.

And just as trial lawyers predicted, the caps are having a disproportionate effect on the unemployed, the deceased and the elderly because these groups don’t have lost wages (economic damages) to prop up their claims. And those are just the cases that are brought and tried. The biggest discriminatory effect might come in case selection. In cases involving the elderly, children and the unemployed, the damages are almost always limited to non-economic damages. It is almost impossible to make these cases work economically. In such a situation, the attorneys are likely being asked to spend $80,000 – $100,000 of their own money (a fairly conservative amount for what it costs to work up a good medical malpractice case) when the best that they can hope for is recovering $100,000 in fees (40% of the $250,000 cap). Add in the difficult nature of medical malpractice claims, and good plaintiff’s lawyers have to turn down almost all medical malpractice cases brought by the unemployed or the elderly.

What does this all mean? During the HB4/Prop 12 debate, one of the constant themes that we heard from Joe Nixon and the tort reformers was the need to eliminate frivolous lawsuits. But this data says the opposite is happening. The tort reform measures don’t stop frivolous claims; they simply reduce the amount of meritorious claims.

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Tort reform measures help patients “receive the justice they deserve.” Are you kidding me?

I thought this was a case that we could all agree upon.

David Fitzgerald went to his doctor to receive medical treatment and ended up with an infection that led to the amputation of both arms and legs. The case went to trial in February, and Fitzgerald prevailed. A jury awarded him $6.72 million in economic damages (things such as lost income and medical expenses) and also awarded an additional $11 million for his pain and suffering and impairment. Due to Texas medical malpractice limits, the $11 million was reduced to $250,000.00.

I thought this was a case where everyone could agree that the result was unjust. Even the tort reform lackeys talking about the case didn’t defend the result, but just said that limits are working. (They say limits are working because there are fewer malpractice cases. No kidding? If you change the rules so that the recovery in most cases isn’t high enough to justify the excessive cost of pursuing a malpractice case, of course, the number of cases will go down. But is that the proper measure of whether the limits work? Maybe we ought to learn something else from it.)

I didn’t think I’d really see anyone defending the result in the Fitzgerald case. I was wrong. Dr. Evelyn Tobias Merrill, of Fort Worth, had to write in to the Fort Worth Star Telegram and defend the verdict. As Dr. Merrill argued, “this case demonstrates that civil justice reforms in Texas enable patients to fully recover medical costs and living expenses associated with an injury…Reforms do work. They ensure that patients who have been injured receive the justice they deserve.”

Seriously, that’s justice? A man loses both arms and legs due to a doctor’s error and recovers $250,000 for his losses, and that’s justice? I try to think about what it would mean to me. No more hugging my wife. No more games of football or basketball with my kids. No more walking the kids to school. No more wrapping my arms around my kids to try and comfort them when they’re hurt. No more walks around the neighborhood with my dog. No more standing behind a grill with a beer, cooking for my buddies. No more Texas football, basketball or baseball games. No more golfing. No more volunteering around town.

For me, that’s not justice. And I suspect that if Dr. Merrill was the victim, she’d agree it wasn’t justice for her either.

Dr. Merrill’s letter and a response from a Dallas attorney are here.

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Schuelke Law maintains offices in Austin, Texas. However, our attorneys and lawyers represent clients throughout the state of Texas, including Dallas, Houston, San Antonio, Forth Worth, El Paso, New Braunfels, San Marcos, Kyle, Buda, Round Rock, Georgetown, Lockhart, Bastrop, Elgin, Manor, Brenham, Cedar Park, Burnet, Marble Falls, Temple and Killeen. By Brooks Schuelke

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