The doomsday scenario for Texas was bleak: It was
increasingly clear that without tort reforms, physicians would
not be able to afford medical liability premiums, specialists
would shun the state and many patients would struggle to find
care.
Lone Star voters took notice and, in 2003, applied their good
judgment to the problem. They approved a state constitutional
amendment limiting noneconomic damages in medical liability cases
to $250,000 for physicians. Five years later, the cap is being
credited for slashing liability insurance premiums, boosting
the ranks of doctors in the state, and improving medical access
to patients.
While a comprehensive national solution has long been a goal
of tort reformers -- and long blocked in the U.S. Senate -- Texas
serves as a fresh example of the progress that can be achieved
at the state level, first demonstrated by California's landmark
Medical Injury Compensation Reform Act of 1975.
Texas physicians have witnessed a 25% overall drop in liability
rates since 2003, the state insurance department says. For the
first time, the state's largest medical liability carrier, Texas
Medical Liability Trust, saw a 50% reduction in lawsuit filings,
this from 2003 to 2008. Texas went from four insurers to more
than 30 during that period.
According to the Texas Medical Board, medical license applications
have soared from 2,561 to 4,041 -- a 58% jump. At the same time,
the number of neurosurgeons has climbed 12%, while the supply
of orthopedic surgeons has risen 9%.
The results seen in Texas, with lowered liability insurance
premiums, are repeated in experiences from other states that
have enacted caps of varying degrees. In February, the AMA released
an analysis of independent research that showed caps on noneconomic
damages are effective and have lowered premiums at least 17%,
with some specialties seeing even greater drops.
Texas also is a timely example of the unfortunate reality that
even carefully crafted reforms will be attacked.
The state constitutional amendment route -- as opposed to solely
legislated reforms -- is seen as providing enhanced protection
from challenges within the state. But like black-hat gunslingers
looking for a showdown, tort reform opponents are staging a legal
challenge. They say the cap won't pass U.S. constitutional muster.
That case is pending in a federal court.
There have been challenges to caps in other states, including
Illinois and Georgia. In both cases, lower state courts voided
noneconomic damages caps enacted in the respective statehouses,
setting the stage for state supreme court fights. The Litigation
Center of the American Medical Association and State Medical
Societies is working with those states to prove the caps are
constitutional.
In fact, the AMA continues to work with many states to enact
and defend liability reforms, providing everything from grants
to research. These and other efforts are in keeping with the
AMA's leading role as a tort reform advocate in the state and
national arenas.
And there is positive news as well. This year, Colorado physicians
fought off efforts to raise the state's $300,000 cap. Nancy H.
Nielsen, MD, PhD, who was then AMA president-elect, spoke on
the issue in the state, and the AMA gave state medical leaders
important research to help their fight.
Enacting -- and defending -- state measures will be a long,
tough fight. That's been the history of medical tort reform efforts
in every venue, hardly surprising given the power of a well-funded
and well-connected trial lawyer community. But each state victory
-- and every contrast to states yet to reform -- helps make the
case to bring tort reform to more places.