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A Tale of Two Stories on Texas Medical Malpractice Reform

In the last few days, two stories have circulated about Texas medical malpractice reforms, and each of the stories has drawn wildly differing opinions about the success of the reforms.  Over the weekend, former Texas representative Joe Nixon, one of the primary backers of tort reform, wrote an editorial in the Wall Street Journal describing the unmitigated successes of tort reform.  (Interestingly, Mr. Nixon notes that in 2005, tort reform had become popular with voters.  Tort reform was apparently more popular with voters than Mr. Nixon.  Mr. Nixon resigned his house seat to run for the Texas Senate.  However, Mr. Nixon came in a distant third — receiving approximately 8% of the vote — in the Republican primary for the seat).

Just two days earlier, reporter Paul Adrian, of the Dallas/Fort Worth Fox affiliate, had run a story asking whether medical malpractice reform was necessary and whether it was benefitting Texans.  Adrian concluded that tort reform was not needed and that there wasn’t any significant benefit, unless you happened to be an insurance company.  In reaching these conclusions, Adrian had several discoveries.

In deciding that tort reform wasn’t necessary, Adrian noted several things.  First, Adrian noted that Texas’s average payout for claims was well below the national average.  He then also noted the work of University of Texas law professor Bernard Black who found that, when adjusted for inflation and population growth, there had not been any increase in the number of claims or the average amount of the claims in the years leading up to the reforms.

Adrian did note that malpractice insurance rates had increased significantly, but those increases didn’t likely have anything to do with malpractice litigation.  Adrian noted that in 1995, Texas had tort reform measures that regulated the rates that the carriers could charge.  At that time, carriers were competing fiercely for business and began undercharging.  Once that undercharging stopped, the rates skyrocketed, but not due to any litigation related expenses.

Adrian also had several interesting findings relating to his conclusion that average Texans aren’t benefitting from the reforms.  While medical malpractice claims have decreased, there is little evidence that this is increasing access to doctors.  While it may be true there are more doctors in Texas, the number of doctors in Texas was increasing prior to the reform.  In fact, Adrian quoted law professor Charlie Silver, who noted that the growth rate in doctors has actually slowed since the tort reform legislation was passed.  Adrian also noted that the reforms haven’t affected health insurance rates, another benefit promised when the reforms were debated.

For doctors, Adrian noted that medical malpractice insurance rates have decreased some, but nowhere near the 140+% increases in rates that led up to the reform.

But the real benefit was for insurance companies.  Adrian noted that medical malpractice insurance companies started making money hand over fist.  By 2006, approximately 50 cents on each dollar of premium collected was going to profit.

Adrian concludes:

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.

Melody Pinsukanjana said, “We’ve lost access to the courts and that’s the biggest frustration I have.”

I urge you to read and watch these two tales, and then consider the source and the data, and make your own conclusions about whether medical malpractice reform is a success.

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