It was never hard to sell to the public because of all the promises of savings on insurance premiums touted by tort reform proponents, proving once again that everyone votes in their own self-interest when they pull the voting booth curtain.
During his failed presidential bid, Texas Gov. Rick Perry perpetuated the myth that implementing Texas-style tort reforms would go a long way toward curing what’s wrong with the healthcare system. Perry was polling at 1 percent going into the South Carolina primary.
He recommended that all states to do as Texas did in 2003 when lawmakers enacted legislation aimed at limiting the amount of money juries can award patients who win malpractice lawsuits against doctors and hospitals. The law capped non-economic (pain and suffering) damages at $250,000 in lawsuits against doctors and $750,000 against hospitals. Voters overwhelmingly approved a like-minded constitutional amendment later the same year.
Texans for Lawsuit Reform (TLR), whose political action committee has become a dominant financial engine for legislative races, has been at the forefront of tort reform efforts.
Its money tended to push out Democrats who, when considering civil justice issues, were more likely to side with the state’s trial lawyers.
Plus, tort reform’s battlefields have changed over the years, from trucking deregulation to workers’ compensation insurance reform, through the political campaigns that swung the Texas Supreme Court from a nine-member Democratic panel beholden to plaintiffs to a nine-member Republican panel beholden to TLR and like-minded people and business groups.
In the mid-1990s, TLR became a powerhouse, overshadowing older business groups and interests. When George W. Bush ran for governor in 1994, one of the four planks in his platform was tort reform. After he took office in 1995, he and the Legislature rewrote some of the state’s basic civil laws, changing the economics of suing for civil damages in Texas and putting serious hurt on trial lawyers.
According to media critic and news analyst Wendell Potter’s website, as a result of the 2003 tort reform law, malpractice liability insurers reduced their rates in Texas and, tort reform proponents say, the number of doctors applying to practice medicine in the state “skyrocketed.”
Reform proponents contend that in the first five years after tort reform was enacted, 14,498 doctors either returned to practice in Texas or began practicing here for the first time.
That’s impressive until one notes how Texas stacks up with the rest of the country in terms of physician growth in direct patient care. It appears that tort reform has not given Texas an advantage in competiting with other states for doctors, Potter wrote in his piece “The Myth of Tort Reform Benefits in Texas” on the website.
In 2008, the number of physicians in patient care per 10,000 civilian population in the United States was 25.7. At just 20.2 doctors per 10,000 people, Texas ranked near the bottom of the 50 states.
In fact, only nine states did worse. In 2000, three years before tort reform, Texas was still bringing up the rear, but not quite as badly. Back then, 11 states did worse.
It is true that medical malpractice insurance rates dropped in Texas after tort reform was enacted, but Texans would be hard pressed to claim any direct benefit — except, that is, for Texans who are doctors. Medical liability premiums have declined by nearly 30 percent since tort reforms were enacted.
A study published in The Dallas Morning News showed the average malpractice rate charged ob/gyns in Texas by the state’s largest domestic insurer of physicians fell from $53,752 in 2003 to $33,881 in 2011. Drops of similar percentages were found for doctors in family practice and general surgery.
Advocates of tort reform have long claimed that one of the reasons for escalating health care costs is that doctors over-treat and prescribe more medications and diagnostic tests than necessary out of fear of being sued. If Texans believed their own health insurance rates would go down once tort reform made these practices less prevalent, they have by now abandoned that notion, Potter wrote.
Truth is, chances of a Texas family saving a few bucks on premiums would be greater if they moved to another state.
According to Potter’s website, the average premium for family coverage in Texas was $14,526 in 2010. That’s $655 higher than the U.S. average. Those numbers indicate that doctors have not passed on their own insurance savings to patients and they are not practicing medicine any differently than before tort reform was enacted.
Not only are Texans paying more for their own insurance while doctors are paying less for theirs, their chances of getting employer-subsidized coverage is less than it would be if they lived elsewhere in the U.S.
Other new studies have found that a smaller percentage of employers in Texas offered coverage to their workers last year than in the U.S. as a whole (51 percent and 53.8 percent, respectively).
And the Texans who do have coverage through the workplace are contributing far more out of their own pockets for that coverage than people who live in most other states. In Texas last year, the average employee contribution toward company-sponsored coverage was $4,500. The U.S. average was $3,721.
Tort reforms that limit the amount that can be awarded for such noneconomic damages, as well as those that decrease awards by the amount of payments from third-party sources, aim to make it less worthwhile to pursue marginal cases, thereby reducing the number of such cases and inefficiencies in the tort system.
Other tort reforms seek to limit liability by making it more difficult to pursue cases against multiple defendants. Still other reforms focus on procedural changes, again making it less likely that marginal cases will be pursued.
In some cases, tort reforms have had the desired impact on Texas’ litigious business climate. As for when savings on insurance premiums will finally trickle down to the average working family, we could be in for a long, long wait.
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source: Henderson Daily News (Floyd, 1/23)
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