The Problem Legislative Solution Bills we Oppose Newsroom Members Video Clips Links  
Texas Legislative Reforms Improving Access to Care Proposition 12 Lobby Team Contact Us  
  Legislative Solution    
  Many Essential Reforms Remain Unaddressed    
   
Access to health care is a problem for many Texans. Sadly, our state leads the nation in the number of uninsured patients. Also troublesome is the fact that many Texans rely on hospital emergency rooms as their primary source of health care. South and rural Texas continue to be medically under served. We can and must do better.

A number of fundamental reforms were passed in the 2003 legislative session that are already improving patient access to care and stabilizing liability rates for doctors, hospitals and nursing homes. Yet, a number of essential reforms remain unaddressed by the Texas Legislature, chief among them a sliding scale on attorneys’ contingency fees and reducing the prospects for double collection of the same damages. Both of these items are part of California’s long-standing MICRA legislation and are proven fundamental reforms necessary for repair of our state’s medical liability system.
 
Howard Marcus, M.D.
TAPA Charman

      

LIMITS ON ATTORNEY CONTINGENCY FEES
A year ago November, Florida and Nevada became the sixteenth and seventeenth states to enact laws limiting attorney contingency fees in healthcare lawsuits. Texas limits fees in workers compensation cases but not medical negligence cases, noted Dr. Howard Marcus, an Austin internist and chairman of the Texas Alliance For Patient Access.

A limit on attorney fees is designed to assure that more money goes to the injured party.

In California, injured parties receive a significantly higher percentage of an award or settlement in a high-dollar case than a Texas plaintiff, said Dr. Marcus. Consider juries in California and Texas each awarding one million dollars in medical negligence cases. Because of the sliding scale limiting attorney fees, the California plaintiff receives $111,000 more than the Texas plaintiff. The California attorney is still able to collect $222,000 in fees plus expenses, yet a more appropriate percentage of the recovery goes to the injured party.

  

COLLATERAL SOURCE RULE
A collateral source rule discouraging “double-dipping” was recommended by the Texas blue ribbon Keeton Commission nearly thirty years ago. The remedy was immediately adopted in California as part of MICRA, but has yet to be enacted in Texas.

Thirty states have enacted laws that allow the introduction of damages already paid by a third party such as Medicare, Medicaid, workers compensation or health insurance. Many of these states require that the award be reduced by the collateral benefits.

CERTIFICATION OF MEDICAL EXPERTS
Misleading and dishonest expert witness testimony continues to be a problem. This problem can be diffused by requiring that expert witnesses obtain a testifying license and that the state medical board be granted the authority to discipline those who fraudulently testify.

ADMISSIBILITY OF BENEVOLENT GESTURES
A nurse or doctor ought to be able to send a sympathy card or express sorrow to a patient without concern that the communications be construed as an admission of guilt.

   
 
 
JUROR DISQUALIFICATION
Increasingly, potential jurors are being disqualified in state district court during the jury selection process for simply expressing a reluctance to render, what they believe to be, an inappropriate award. “This wrongfully presupposes that a potential juror is unwilling to follow the law or the court’s instructions when considering evidence,” noted TAPA chairman Dr. Howard Marcus. “Allowing further questioning of the potential juror would either underscore an existing bias or disprove it,” he said.
 
     
PERIODIC PAYMENTS
Rather than paying future health care damages in a lump-sum, many courts have found value in allowing structured installment payments. This process assures that monies are not squandered and that patients receive payment when the money is needed. Sometimes a well-meaning jury doesn’t award enough money or awards too much in a case requiring long-term medical care. “Rather than play ‘hit or miss’ jurors can be confident that the plaintiff will get the money he or she needs, when they need it, if jurors are allowed to hear testimony about annuities and structured settlements, Dr. Marcus contends.
 
LIMITATION ON LIABILITY FOR VOLUNTEER PROVIDERS
Currently, Texas law provides immunity from liability for doctors and nurses who volunteer their services in a non-profit clinic. As a means of further encouraging charity care, TAPA would like to see this limitation applied to services provided in a government-operated clinic, as well.