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Texas cap under attack |
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By Howard Marcus, M.D.
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Tort reform: Some states have it, others desperately need it, and states like Texas who have achieved it must battle to keep their reforms intact. Texas’ damage cap is far from secure in the legislature or in the courts.
Lawsuit reform is a never-ending struggle with no expectation of surrender on either side. There is no lasting peace. The trial lawyers won’t allow it. It’s not their nature. To expect otherwise is to underestimate the creativity, tenacity, salesmanship and persistence of the plaintiffs’ bar. And, you know medicine won’t give in either.
What is won today can be lost tomorrow. Many a state has won reforms in the legislature only to lose them in the courts. Oregon passed a non-economic damage cap in 1997, had it ruled unconstitutional in 1999, and then had the cap validated in wrongful death cases just a few weeks ago. |
Howard Marcus,MD
TAPA Chairman |
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New York
New York doctors are where we were five years ago: marching on the Capitol, pleading for help. In late March, 1,500 New York physicians protested on the Capitol steps. According to news accounts, “Many sadly left their white coats on the steps to demonstrate that they will be forced to leave their practices, retire or relocate if the current New York medical liability system is not changed.” Sound familiar?
New York doctors pay some of the country’s highest liability premiums; they have no cap and no relief in sight. Aside from facing a 15-to- 25 percent rate hike, New York doctors may soon face a $50,000 surcharge to replenish the state’s medical malpractice reserve fund, which is technically bankrupt. With the political cards stacked against them, hope is so far away you couldn’t see it with the Hubble telescope.
Hawaii
Doctors in Hawaii can bid aloha to any hopes of passing meaningful medical lawsuit reforms this session. Just a few weeks ago, the House killed a measure that would have had instituted proportionate liability and caps on non-economic damages and limited attorneys’ fees. Doctors found a sympathetic audience on talk radio and in newspaper editorial pages, but their proposed fix failed in both chambers.
Colorado
For 20 years, Colorado’s medical liability climate has been a model of consistency. That may soon change. The state Senate recently passed a bill, backed by the trial lawyers, that would raise the state’s current $300,000 non-economic cap to $460,000. Injuries classified as physical impairment or disfigurement would no longer be subject to that cap.
Colorado law caps total medical liability awards at $1 million, which would not change. However, judges have the discretion to review economic awards and override the $1 million threshold. According to AMNews, doctors worry that removing physical impairment and disfigurement injuries from the non-economic cap would make it more likely that a court would enter a judgment in excess of the $1 million limit.
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Florida
Florida, like so many other states, is having trouble finding doctors willing to be on call for emergencies. According to the Saint Petersburg Times, fear of lawsuits is the No. 1 reason that hospitals can’t find specialists willing to cover the emergency departments. The Times reports Florida lawmakers are considering a bill that would make health care workers “agents of the state” when they treat emergencies. It would extend limited liability to doctors, nurses, paramedics and hospitals. Any lawsuits against such workers would be limited to $200,000 unless legislators pass a special bill to authorize more.
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Texas
Clearly, Texas hopes to avoid these experiences. Yet, losses will surely occur if we are not vigilant.
Last session, we faced some close calls in Texas. The difficulty in stopping attacks on emergency care protections (SB 468) and the medical bills paid or incurred provision (HB 3281) suggests that neither the Senate nor House is as stout on tort reform as we would like. Both bills likely will be reintroduced next session.
For years, we’ve had difficulty staffing our emergency departments, especially in rural Texas. Lowering emergency care protections would only hurt patients who need urgent and specialized care. Passage of the paid or incurred measure would permit plaintiffs to collect discounted or forgiven bills. These phantom damages typically involve the pursuit of full medical charges billed by the physician or health care professional rather than the reduced amount paid by the health insurer. Permitting inflated damages would increase claims frequency; not meritorious claims, mind you, but rather phantom damage claims.
Events of the 2007 session were an alarming jolt, telling us we need to do more, much more; otherwise we will gradually lose our hard fought gains.
Our landmark lawsuit reforms have improved access to care, aided physician recruitment, and produced tremendous liability savings for doctors: $327 million in savings to be precise. Losing these reforms would be costly to our patients and our practices.
Texas judicial issues
The lynchpin of our medical lawsuit reform package is the non-economic damage cap. Losing the cap would be devastating.
Currently we are defending the validity of the cap in both state and federal court.
The 2003 reform bill included a special provision allowing a streamlined process for resolving constitutional challenges to the cap. Lawmakers clearly recognized that the goal of the law—improved access to care and reduced liability costs for doctors and hospitals—would be limited without constitutional certainty.
In early February, the Texas Medical Association, the Texas Hospital Association and the Texas Alliance For Patient Access, exercised that provision. A case against a Corpus Christi doctor raised constitutional challenges to the cap. The physician filed suit in Travis County to resolve the challenges and we joined that suit. This will lead to an expedited appeal to the Texas Supreme Court.
A few weeks later, the wife of former Dallas Cowboy Ron Springs and 10 other plaintiffs filed a federal class action lawsuit in the Eastern District of Texas that challenges the constitutionality of the cap. The plaintiffs claimed the Texas cap violates the U.S. Constitution on four grounds: right to trial, due process, equal protection and right to petition. The lawsuit probably will not be remanded to state court because it raises only federal challenges.
Additional defendants in the federal suit include all physicians and health care professionals who seek to enforce the cap and more than 600 Texas civil court judges who are required to enforce the cap.
The fact that a federal challenge to a state non-economic damage cap has never succeeded is of little comfort. The plaintiffs bar have brought in its “A team” of constitutional specialists who have had success in busting caps in other states.
This is our biggest fight since the passage of Prop. 12.
Even if we win in the courts—and we believe we ultimately will prevail--the Texas cap is not untouchable. The legislature could choose to raise the cap, index the cap or create exceptions to the cap—any of which would reduce access to care and trigger an increase in your insurance premiums.
The threat is real and the stakes are high. We owe it to our patients, ourselves, and the generation of doctors who follow –like my daughter and son-in-law--to keep our reforms in place.
Dr. Marcus is an Austin internist and chair of the Texas Alliance For Patient Access, a statewide coalition committed to passing and preserving meaningful medical liability reform. The Texas medical Association and the Texas Hospital Association are founding and sustaining members of TAPA. |
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