Paper finds Texas tort reform didn't draw more doctors to state

Black/Hyman/Silver have a new draft paper, "Does Tort Reform Affect Physician Supply? Evidence from Texas," (via Robinette) that substantially undermines the empirical case for the conventional wisdom that Texas's 2003 reforms against medical malpractice lawsuits attracted more doctors to Texas. The result is highly counterintuitive: after all, even the authors acknowledge that the reforms dramatically decreased malpractice expenses for doctors. Are we to conclude that doctors do not respond to economic incentives?
Alas, the authors do not suggest any explanation for the phenomenon they describe. Possibilities:

• The supply of doctors is inelastic relative to after-expense income. This is a testable hypothesis, and would have dramatic implications for "bending the cost curve" of health-care expenditures if true.
• Employers of doctors offset the decrease in medical-malpractice expenditures by decreasing wages paid to doctors. This seems somewhat implausible, as many doctors are independent, and the ones that aren't probably aren't paying for their own malpractice insurance. But it is also a testable hypothesis. Too, if the health-care market in Texas responded to such a wage decrease by reducing costs to patients (or, at least, reducing costs to patients relative to the nationwide trend of rising costs to patients), that is also worth studying, and would be a benefit that may refute the overstated conclusion of the authors that "tort reform is a small idea, when it comes to the larger and linked questions of health care access and affordability."
• The quantity of doctors did not increase, but the doctors responded to the incentives by changing the mix and quality of services provided in any given year: more OB/GYNs willing to deliver babies rather than restricting themselves to less risky work; more doctors willing to work in emergency rooms; doctors spending more time seeing patients and less time in medical-malpractice-related activities like defending themselves in lawsuits, cover-your-ass documentation, and (for better or worse) defensive medicine. If the average practicing doctor is spending more hours with patients post-tort-reform than pre-tort-reform, doctor supply is increasing, even if the raw numbers aren't. I am not aware of any evidence for this, but economic theory would predict this result. It's not clear whether the data exists to test this hypothesis, but as in the parable of the drunk looking for his lost keys under the streetlamp, one should avoid drawing conclusions that contradict economic theory just because it is too difficult to test an alternative hypothesis consistent with economic theory. Too, if defensive medicine practices changed, as one predicts they would, have health outcomes changed for better or worse? (Professor Silver has argued elsewhere his concern that Texas doctors would take less care post-reform.) Again, this is difficult to test, especially since the adverse consequences of many defensive-medicine decisions, such as excessive CAT scans, won't be known until the additional cancers show up decades later. But it is both a potential benefit and a potential cost of tort reform, as we don't know to what extent doctors are properly weighing benefits and costs (including opportunity costs of more intensive treatment of a particular patient) at the margin. Kessler's study, backed to a lesser extent by the CBO, certainly suggests defensive medicine is wasted money at the margin in the state of the world without damages caps, but defensive medicine is surely different today than in the 1980s.
• For many doctors with low-risk practices, malpractice liability is not a large factor in their practice decision. But the malpractice liability crisis most heavily hit high-risk practices, like neurosurgery or OB/GYN or emergency-room care. Did Texas tort reform materially affect the supply of doctors in high-risk specialties, while the effect on low-risk specialties was overwhelmed by noise? This should be a testable hypothesis, but the data is poor because of a change in the way statistics were collected. The authors try to get around this by comparing 1997-2000 growth to 2008-2010 growth, but there's not necessarily a reason that one would predict a post-tort reform world to have a different post-equilibrium effect than a pre-tort reform world. One cannot rule out the hypothesis that doctors overreacted to the new incentive when tort reform was first imposed and that depressed new demand in later years. Of course, one cannot rule out the null hypothesis that a dramatic decrease in malpractice-insurance rates caused by tort reform did not increase the supply of high-risk doctors, though, again, one wishes for an alternative explanation for why doctors are not responding to economic incentives. (Note, too, that the authors' decision of excluding 2001-07 from the data has dramatic effects on the data. It's unclear to me why a reporting change in 2001 that would artificially increase the 2001-02 numbers relative to the 1999-2000 numbers should have an effect on the 2003-07 numbers, especially given the 2000-2003 declines that are being excluded.)

Can anyone think of other alternative hypotheses in the comments?
I remain skeptical that a wealth transfer from lawyers to doctors and patients didn't have positive externalities, but I, for one, am going to stop claiming that Texas tort reform increased doctor supply without better data demonstrating that. More study is needed to explain Black/Hyman/Silver's counterintuitive result, and partisans on both sides need to be more conservative with their policy claims. Earlier.


[source: Point-of-Law, Frank]

Editor says tort-reform law hasn't benefitted Texas

(commentary by Tony Floyd, Managing Editor of Henderson Daily News)

Texas may not have been the first state to welcome tort reforms but I can’t imagine anyone embracing it with such wild enthusiasm as Texans over the past 20 years or so.

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)

Analysis: Tort reform in Texas has not resolved physician shortages in some areas

PRESIDIO, Texas (AP) — Presidio County is bigger than Delaware and has just one practicing physician who doesn't deliver babies or treat emergencies. It's the kind of underserved region that Gov. Rick Perry suggested would benefit when he proposed a crackdown on medical malpractice lawsuits in 2003.

Now running for president, Perry says his tort reform plan proved the wisdom of his business-friendly policies by expanding health care across the state.

Yet none of the 23,000 doctors Perry says Texas has newly licensed have come this way.

"Some patients, when they find out they're pregnant, bam — they're out of here," said Dr. Darrell Parsons, whose practice in Presidio is just across the Rio Grande from Ojinaga, Mexico.

An analysis of Perry's tort reform initiative in Texas reveals a more complicated bottom line than his campaign rhetoric on the issue would suggest. State medical data show that the number of physicians practicing in Texas has increased since the initiative passed in 2003, though by considerably less than the total Perry cites. And the bulk of that influx has come in larger cities where health care was already abundant, leaving large rural swaths of Texas still without doctors.

In many ways, the growth in the health industry in Texas adds more fodder to a larger debate surrounding Perry's record: How effective were his conservative policies in solving problems and increasing jobs, which is the core issue of his presidential campaign? And how much of Texas' economic growth during his 11 years in office mostly reflected a state with a booming energy industry and an increasing population?

Discussing his malpractice reforms in a speech in Georgia in September, Perry said, "Pregnant women have better access to OB-GYNs. People in need of trauma care have better access to neurosurgeons and other specialists. That's what tort reform is really all about. About how to give better access to the people of my home state. We need to spread lawsuit reform across all economic sectors of this country."

However, medical records in Texas show that of the state's 254 counties, only 106 have an obstetrician/gynecologist — just six more than in 2003. In Presidio County, which has 8,000 residents and is growing, some of Parsons' patients move 240 miles away to live with relatives in Odessa or Midland when they become pregnant.

Overall, the increase in physicians in Texas roughly tracked the state's population growth. Medical rolls increased by 24 percent since 2003, while Texas' population was soaring by 20 percent during the decade. Texas also saw rapid growth of physicians per capita before tort reform, according to the Texas Department of State Health Services.

The statistic Perry most often cites — 23,000 newly licensed doctors after tort reform — includes about 10,000 who sought licenses in Texas but took jobs elsewhere and physicians practicing telemedicine in other states.

Tort reform lobbyists point to a surge in the number of doctors in some high-risk specialties like surgery and emergency room care, particularly in the growing Rio Grande Valley.

"By no means do we claim that all doctors new to Texas are because of tort reform. But we absolutely claim that the accelerated growth is because of tort reform," said Jon Opelt, executive director of the Texas Alliance for Patient Access.

Perry spokeswoman Allison Castle said tort reform ended "abusive oversuing" and played a role in Texas today having a record number of doctors per capita.

"Tort reform has resulted in better access to care, which includes more specialized care that is now available in more Texas communities thanks to these reforms, and that is absolutely a success," Castle said.

Health care shortages have plagued rural Texas for decades and few regions struggle more than West Texas. In Pecos, about a four-hour drive north of Presidio through sprawling ranchland and mountains, Mayor Venetta Seals recalled the wife of a California couple who became ill while traveling through the area earlier this year. By the time they reached the closest hospital nearly 200 miles away, the woman had died in the car.

Seals joked that the region perhaps needed signs on the Interstate informing drivers they're nowhere near a hospital. "Think about if you had a wreck, and just to get an ambulance took an hour," Seals said. "And that's one-way."

Perry made access to health care a major argument for tort reform in the initiative's advertising campaign in 2003, saying the state was hemorrhaging doctors because of lawsuits and malpractice insurance costs. The ballot issue, Proposition 12, became the most expensive campaign ever waged to amend the Texas Constitution. More than $15 million was spent in the showdown between trial lawyers and health care interests.

In a speech to the conservative Heritage Foundation that year, Perry told a New York audience how three out of five Texas counties lacked an obstetrician.

"That's a hardship for many pregnant women in certain areas of our state, but especially women with high-risk pregnancies," Perry said.

Eight years later, that ratio is the same.

In rural areas, doctors, including Parsons, nevertheless insist the lawsuit limit capping noneconomic damages at $250,000 was justified. Doctors statewide have seen their liability rates drop by an average of 27 percent, according to the Texas Medical Association. Parsons said he wouldn't have stayed in Presidio without the new caps.

"You don't have that hanging over your head," Parsons said.

Recruiting doctors in rural areas, however, is difficult. And another aspect of Texas' government philosophy — a low Medicaid reimbursement rate, ranking 49th in the nation, and sparse public spending — makes practicing in rural areas here less appealing than in other states. "Obstetricians want good education for their children and reasonable reimbursement for their services," said James Scroggs, director of health economics for the American Congress of Obstetricians and Gynecologists.

Parsons, a Kansas City native who began practicing in nearby Alpine in 1999, says it takes a "missionary spirit" to become a doctor in a place like this. And residents get used to doing without much health care.

"Out here, you get sick or hurt on Monday or Thursday. That's the day the clinic is open," said Zachary Zniewski, a carpenter in neighboring Brewster County. He looks down at his hand, which is missing a finger.

He accidentally sliced it off on a Wednesday.

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source: Associated Press (11/7)

Cain would institute tort reform, "loser-pay" laws as president

Lost in the calls throughout the past 24 hours for Herman Cain to respond to new details surrounding allegations that he sexually harassed employees during his time as president of the National Restaurant Association were a number of policy statements that in an ordinary week would have raised eyebrows among political watchers.

Perhaps most significant was Cain's suggestion in an interview Monday that China was a threat to American interests because of its attempts to develop nuclear weapons, despite the nation having been a nuclear power since the 1960s.

"They're a military threat," Cain said on PBS. "They've indicated that they're trying to develop nuclear capability and they want to develop more aircraft carriers like we have. So yes, we have to consider them a military threat."

Cain addressed the issue again Wednesday at a technology forum outside of Washington, clarifying his comments to say that the country was "testing to improve their nuclear arsenal" but maintaining that he saw the country as a major "national security threat."

Cain also suggested deploying a fleet of naval warships armed with defensive ballistic missile technology around the globe to project American power. He said that such a move would give nations like Iran pause when considering antagonizing the United States.

"This kumbaya strategy isn't working… if Iran feels frogish and wants to jump, jump - we will be able to respond effectively," Cain said.

At a health care forum on Capitol Hill later Wednesday, Cain said that he hoped to have President Obama's plan repealed by March 23, 2013 - three years to the day after Obama signed the bill into law, and, coincidentally, his son's birthday.

"I am 100 percent behind and will sign legislation as soon as it hits my desk to repeal Obamacare entirely, because it is a disaster," Cain said.

Cain also argued for tort reform and "loser-pay" laws that would punish those found to have filed frivolous lawsuits.

"Just like a judge has to impose a certain penalty for certain felonies, judges should have mandatory penalties they impose for frivolous claims," Cain said.

The Republican House members assembled seemed impressed by Cain's appearance.

"I liked what I heard, he seemed engaged on the issues of health care," Rep. Glenn Thompson (R-Pa.) said following the event.

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source: thehill.com (Sink, 11/2)

AAJ criticizes firms' attempts to curtail consumers' access to legal system

by Gary M. Paul

On Wednesday, Speaker John Boehner (R-Ohio) addressed the U.S. Chamber of Commerce and its Institute for Legal Reform — the leading front group for multinational corporations seeking to limit Americans’ access to the courts.

And in its typical self-serving fashion, ILR has seized on the hardships of millions of unemployed Americans, claiming that this country needs “jobs, not lawsuits,” despite no actual evidence to bolster its nonsensical claims.

ILR’s board members run the gamut of industries — from chemical makers and drug companies to Wall Street banks. And they have more in common than just their commitment to closing the courthouse door on injured Americans. The corporations that finance ILR have long, storied histories of using the courts for their own agendas — to gain the upper hand against their competitors, customers and even each other.

One ILR board member, Caterpillar Inc., sued the Walt Disney Co. because it felt the depiction of bulldozers in the straight-to-video movie “George of the Jungle 2” was overly villainous. FedEx Corp., another stalwart board member, took a “stand for justice” by suing a man for making a chair out of FedEx boxes. Johnson & Johnson used the civil justice system to take on a most unlikely foe — the Red Cross.

These corporations certainly have the right to seek justice through the legal system. What makes their actions shameful is that they are members of ILR’s board for the sole purpose of denying American workers and consumers that very same right. This ultimate hypocrisy not only undermines that ridiculous jobs argument but also highlights their real motivations: obtaining immunity when they injure or kill American workers and consumers.

Every company that holds a seat on ILR’s board or participates as a member stands to gain monetarily from the organization’s agenda of blocking the courthouse doors. For instance, in return for being an ILR board member, Honeywell International has received lobbying and public relations help when its negligence has been uncovered. Days after an Illinois jury delivered a multimillion-dollar verdict against Honeywell for conspiring to hide the dangers of asbestos, the Madison County Record, an Illinois-based propaganda-as-news outlet fully owned by ILR, featured an opinion piece headlined, “McLean County Continues Inching Closer to Becoming a ‘Judicial Hellhole.’”

America’s civil justice system gives people a fair chance to hold wrongdoers accountable. The civil justice system has uncovered countless examples of corporate negligence, and as a result, things we take for granted — whether it is cars, medicines or the workplace — are all safer. Our legal system also serves as a powerful deterrent, making corporations think twice before putting profits ahead of people. Thousands of lives are saved because the civil justice system gives corporations the needed incentive to make better products, instead of ones that are cheaper but more dangerous.

When faced with abusive corporate practices, the courts are often the last resort for everyday Americans to seek justice. ILR board members know a jury verdict is one of the few things they cannot buy and control, but with ILR’s assistance, they have found a willing partner to simply whine to Congress for more immunity instead.

We cannot allow self-serving corporations — let alone their front groups — to just slap a “jobs creation” sticker on legislation that has absolutely nothing to do with jobs, in order to finally check off items on their wish list. There is a difference between providing incentives to employers to hire more workers and giving handouts to corporations that simply want to skirt the law and avoid accountability. While we doubt the chamber will ever learn the difference, we certainly hope lawmakers will.

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source: Roll Call (Paul, 10/26)

Texas' tort law has failed to reduce health costs, attract doctors

A national report released Wednesday says the 2003 Texas law that limited damage awards in malpractice suits has caused health care spending to rise and has not significantly increased the number of doctors in Texas.

The report comes as Gov. Rick Perry has touted the benefits of the law on the presidential campaign trail, boasting that it has added 21,000 Texas doctors — a claim the report disputes. Supporters of the law also urged Congress to enact a similar provision for the nation as part of the federal health care law that passed in March 2010. That provision was not included.

The 24-page report by Public Citizen, "A Failed Experiment," says that using Texas as a model would benefit doctors and insurers — not residents.

The report claims that Medicare spending in Texas has risen faster than the national average, and so have private health insurance premiums. It also says that, contrary to Perry's claims, the per capita increase in the number of doctors practicing in the state has been much slower since the state passed the so-called tort reform law than it was before the law.

Organizations that support the 2003 law — the Texas Medical Association and the Texas Alliance for Patient Access — disputed the report's assertions on the number of physicians who have come to the state. As for health care costs, "we never said consumer costs would go down," Jon Opelt, the alliance's executive director, said Wednesday.

Before the state limited damage awards that patients and their families could collect in malpractice cases, doctors were leaving the state in droves, and malpractice insurance rates were about double what they are today for most doctors, said Dr. Howard Marcus, an internist at Austin Regional Clinic. Marcus, a member of the medical association and chairman of the alliance, said that it took several years for tort reform to have an effect and that since 2007, Texas has licensed 60 percent more new doctors each year than it did before tort reform.

The report by Public Citizen, a nonprofit consumer advocacy group, examines the number of direct patient care and primary care doctors in Texas between 1996 and 2010. It says that in the seven years before the lawsuit limits, the per capita number of doctors increased by 9.3 percent. In the seven subsequent years, the increase was 4.2 percent.

Perry's 21,000 figure was disputed by a PolitiFact check, which Public Citizen cited. PolitiFact said that Perry was counting all physicians licensed in Texas — the number actually practicing was 12,788 — since 2003. Experts said most of that increase was due to population growth, not tort reform.

Marcus said that Public Citizen erred by using a seven-year range before and after the 2003 law took effect. He said that it took until about 2007 for the law's effects to be felt, adding that it would be better to examine 2007 to 2011 and compare those years with the period before the tort changes.

Perry spokeswoman Allison Castle said Wednesday that tort reform has greatly expanded access to care, especially in underserved rural areas. For example, she said, the number of obstetricians in rural areas of Texas has grown by 27 percent.

Castle added that from 2003 to 2009, Texas premiums for employer-sponsored health coverage increased at a lower rate than the national average and 27 other states.

The Public Citizen report counters that doctors in rural areas of Texas have decreased by 1 percent since tort reform after increasing by 23.9 percent in the seven years before the 2003 law.

It also says that health care coverage is unaffordable to more Texans since the law took effect. In 2010, 24.6 percent of Texans were uninsured — the highest rate in the nation — compared with 23.6 percent in 2003.

Regarding Medicare costs, the Public Citizen report says that proponents of lawsuit limits say that doctors would order fewer tests and practice less "defensive medicine" if they didn't have to fear as many lawsuits. "In fact," the report says, "Medicare diagnostic testing expenditures in Texas not only increased during this time frame (2003 to 2007), but rose 25.6 percent faster than the national average."

Marcus and Opelt said many factors drive such costs and that they have no bearing on changes in the medical malpractice law.

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source: www.statesman.com (Roser, 10/12)

Texas's loser pays law anticipated to have minimal effect

Texas Governor Rick Perry's latest plan to kick trial lawyers out of his state may not send them packing after all.

The so-called "loser pays" law that Perry has touted as he seeks the Republican nomination for U.S. president will not have a significant impact in his state, according to attorneys and legal experts. The measure has sparked interest among proponents of legal reform nationwide, though other states are not rushing to adopt similar laws.

Legal experts say the Texas law, which in certain cases makes the loser in a civil lawsuit pay the other side's legal fees, is narrowly written, and will only affect a small number of lawsuits, perhaps 5 percent of those filed in Texas.

"It's a triumph of labeling," said Walter Olson, a fellow at the libertarian Cato Institute in Washington, and an expert on legal reform. "This is not a 'loser pays' system -- not even close. It is one little slice of 'loser pays' that wouldn't have been given national attention if the label hadn't been slapped on it."

Perry, the Republican frontrunner in the 2012 presidential campaign, made the legislation an "emergency" item on his 2011 agenda as governor.

He said the law will not only reform Texas' legal system, but will also create jobs. Because they will be able to avoid "frivolous" lawsuits, employers will flock to the state to do business, he said.

But the new "loser pays" provision likely will be invoked only occasionally, only in cases dismissed from court in the early stages, said Bradley Parker, a partner at law firm Parker McDonald in Fort Worth.

Perry has boasted about the new law on the campaign trail, including at a nationally televised Republican presidential debate earlier this month when he said the measure, coupled with previous reform efforts, would go a long way to "tell the trial lawyers to get out of your state."

The law is significant, says Perry spokeswoman Allison Castle, because it "streamlines" litigation and "keeps defendants from being "dragged through months, or even years, of expensive discovery before the court can dismiss the case."

The Texas law, which went into effect on September 1, brings the state in line with other U.S. states by allowing a judge to declare an early dismissal of a lawsuit. Now, when a judge throws out a case because it has "no basis in law or fact," the court will award attorneys' fees to the prevailing party.

Alex Winslow, executive director of Texas Watch, a consumer advocacy group, said he was more concerned with another part of the law: changes to a provision that might be nicknamed "winner pays." that could discourage individuals and small businesses from bringing legitimate lawsuits against large corporations

If a plaintiff rejects a settlement offer and subsequently wins an award worth less than 80 percent of the rejected offer, the defendants can recover litigation costs out of the jury award.


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source: Reuters (Herbst, 9/28)

Hundreds of new Texas laws go into effect Thursday, Including "Loser Pays" Law

Come Thursday, there will be some new laws in town.

No longer will most Texans have to worry about leaving guns in their cars while at work. Drivers won't have to worry about slowing down on some highways at sundown. Teens caught "sexting" face misdemeanor charges - and attending state-sponsored classes about the dangers of sending sexually explicit messages and texts with their parents. And most women seeking abortions will first have to undergo a sonogram and learn the results.

Those new laws - along with the new state budget, which includes billions of dollars in cuts - are among the hundreds of new laws that go into effect Thursday. State lawmakers earlier this year passed more than 1,400 new laws, nearly half of which go into effect Sept. 1, the beginning of the new fiscal year.

"These laws are a lot of small things that might add up to be something big," said Brandon Rottinghaus, assistant political science professor at the University of Houston. "You have a fairly conservative agenda that manifested in the grouping of these laws.

"Collectively, people may feel a trend toward more conservative governing," he said. "Among the bigger things, the general scope of the budget and the major issue - the need to cut billions of dollars and the way in which it was cut - shows a distinctly conservative stamp on the Legislature."

A sampling of some of the new laws that go into effect Thursday:

Budget

Facing a multibillion-dollar shortfall, state legislators earlier this year passed a $172.3 billion budget for the next two years that whittled more than $15 billion from state spending in areas such as public schools, higher education and social services. Critics say cuts went too deep and bookkeeping maneuvers - such as delaying certain state payments - were used to balance the budget. Supporters say lawmakers passed a conservative budget that answered taxpayer demands to reverse government growth. House Bill 1

Sexting

Texas minors who like sexting - or sending sexually explicit pictures or messages, generally from one cell phone to another - better watch out. Until now, prosecutors either dropped the case or had to prosecute minors under adult pornography laws. Starting Thursday, youth who sext and get caught can be charged with a misdemeanor - which can lead to jail time with repeated offenses. Not only that, but underage Texans convicted of sexting will take a state-sponsored educational class about the dangers of sexting - with one of his or her parents. However, the sexting conviction may be removed from the youth's record at the age of 18. "Here's the message to parents -- pay attention to this new technology," said state Sen. Kirk Watson, D-Austin, who carried this bill. "Pay attention to your kids. Know what it is they're doing with regard to text messages, sending images and that sort of thing, and take the time to talk to them." Senate Bill 407

Guns

Under a new law, most employers will no longer be able to prevent employees who legally own guns and ammo from storing them in their locked, private vehicles parked in company parking lots during business hours. There are a few exceptions, such as preventing the guns and ammo in cars parked in school and federal building parking lots. And the law only allows those guns and ammunition to be stored in parking lots, garages and other parking areas provided to employees - not inside actual businesses. SB 321

Speed limits

Texas motorists no longer have to worry about slowing down at sundown, now that the state won't have separate speed limits for day and night driving. The black nighttime speed limit signs that required motorists to drive 5 mph slower at night than during the day will start coming down Thursday, but officials say it will take months to remove all of them. Officials say uniform speeds for vehicles during the day and night can cut down on problems such as tailgating and vehicles changing lanes to pass slower-moving vehicles - actions that play a role in some accidents. New Texas laws also let transportation officials raise limits to 75 mph in some remote areas, none of which are in Tarrant County. HB 1353

Romeo and Juliet

This law is geared to spare teens and young adults who have consensual sex from being labeled sex offenders. It prevents a young defendant from having to register as a sex offender if he or she had consensual sex with someone 15-years-old or older and there is less than a four-year age gap between the couple. SB 198

Respectful language

Over time, the term "mental retardation" will be weeded out of state statute and use, as officials say the term can be hurtful and offensive to those with developmental and intellectual disabilities. "There is a stigma associated with the 'R' word," said state Rep. Vicki Truitt, R-Keller, who carried the bill. "It costs nothing to adopt verbiage in state statutes to reflect the fact that we recognize individuals and their uniqueness, without using offensive terms to categorize and label these good Texans." HB 1481

Homestead exemption

Starting Thursday, Texas homeowners who apply for a homestead exemption on their primary residence must show ID, mainly a driver's license or ID card and a copy of their vehicle registration receipt. The address on the ID and receipt must match the address for which they seek an exemption. Those without vehicles may submit a notarized affidavit certifying they don't have a vehicle - and a current utility bill that lists the person's name and address that is on the homestead exemption application. State officials say they hope to cut down on fraudulent homestead exemption claims, such as those by people who own vacation homes in Texas. "Right now, residents of other states can claim the homestead exemption even if they only come to Texas one weekend out of the year," said state Rep. Harvey Hilderbran, R-Kerrville. HB 252

Radioactive waste

Low-level radioactive waste generated from foreign countries will not be shipped to Texas, but similar waste generated in dozens of states in the U.S. may ship their waste to Texas' Waste Control Specialists site in Andrews County, which is owned by Dallas billionaire Harold Simmons. SB 1504

Innocence Project

A package of bills proposed by the Innocence Project of Texas will go onto the books, overhauling eyewitness practices by law enforcers, ensuring that if DNA evidence exists and is available to prove a person's innocence then it will be tested and creating uniform standards regarding the collection, retention and storage of biological evidence. Cory Session - brother of Tim Cole, a Fort Worth man who died in prison for a crime he didn't commit - now serves as the policy director for the Innocence Project and supported these bills. HB 215, SB122, SB 1616

Driver's ed

Driver's education instructors will have to undergo background checks and the Texas Education Agency may revoke licenses given to people who have been convicted of certain felonies, such as sex offenses. HB 2678

Missing Texans

Statewide AMBER Alerts will now be able to call attention to missing adults with diagnosed intellectual developmental disabilities, in addition to alerting the public about abducted children. HB 1075

Boating

Texas boaters born on or after Sept. 1, 1993 must complete a boater safety education course. This is a new effort by lawmakers to phase in more safety requirements for Texans using personal watercrafts and boats, especially since there are about 600,000 registered boats in this state. Boaters must keep a valid ID and documents showing that they passed a boater education course with them. The new law also says those operating a motorboat with a motor of more than 15 horsepower must be at least 13 or supervised someone older than 18 who can legally operate the motorboat and is on board. HB 1395

Rape kits

Law enforcers will have to more quickly test biological evidence collected from sexual assaults. They now must give evidence to a crime lab within 30 days of collection for testing or test it themselves. "This bill will give victims of sexual assault some peace of mind, knowing that these evidence kits will not just sit on a shelf collecting dust," said state Sen. Wendy Davis, D-Fort Worth, who carried this in the Senate. SB 1636

Daycare

This bill was passed in the memory of Nathan King, who died after day-care workers gave him medication that his parents had not approved. Under this bill, daycare workers need written parental permission to give medicine to a child or face prosecution. HB 1615

Domestic violence

Victims will now be able to not only cover themselves, but also their pets, under protective orders. Victims have said this is important because they often have to leave pets behind when fleeing violence and their abusers may threaten to kill or injure the pet. SB 279

Noodling

Texans will be able to fish with their bare hands - using their fingers as bait in underwater catfish holes to catch and haul out catfish, officially legalizing "noodling." This lets those with state-issued fishing licenses and freshwater fishing stamps fish with their hands. HB 2189

Loser pays

The goal of creating a "loser pays" system is cutting down on frivolous lawsuits in Texas, potentially making the court system more affordable for all Texans to use. The bill calls for some civil plaintiffs who sue and lose to pay not just the court costs, but also the legal fees, of those they are suing. HB 274

"Generally, the new laws reflect a conservative point of view," said Allan Saxe, an associate professor of government at the University of Texas at Arlington. "However, the biggest impact was the budget cuts that still were not nearly as profound as some believed they would be a year ago."

ONLINE: governor.state.tx.us/news/bills/

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source: Ft. Worth Star-Telegram (8/30)

Rick Perry: Trial Lawyer Enemy No. 1?

Plaintiffs’ lawyers, it appears, are wasting no time readying an attack on Texas Governor Rick Perry.

Texas has enacted considerable tort reform under Perry, including capping damages for pain and suffering and, most recently, requiring certain losing parties in litigation to pay the other sides’ court costs and attorneys’ fees. (Click here for LB background on the loser-pays law.)

If Perry is the Republican nominee for president, Politico reports, deep-pocketed trial lawyers are ready to play a major role in trying to defeat him. (HT: PointofLaw.com)

The Perry campaign has already cited tort reform as a priority, according to Politico. Campaigning in South Carolina on Friday, for example, Perry said that “back in the ’80s and ’90s, Texas was a very litigious state,” but now: “We passed the most sweeping tort reform in 2003 and it still is the model in the nation.”

“If Perry’s the nominee, the trial lawyers will come out of the woodwork to support Obama, where I don’t know that they would now,” John Coale, a former trial lawyer, told Politico.

Plaintiffs’ lawyers have long been a major source of funds for Democrats. The American Association for Justice — the trade group for the trial bar — has given about $34 million to candidates since 1990, and 89% of that amount went to Democrats, Politico reports, citing data from the Center for Responsive Politics.

The Perry campaign, meanwhile, seems like it is spoiling for a fight with plaintiffs’ lawyers. “Of course they’re going to scream and shout when they feel that someone like Gov. Perry is standing in the way of them lining their pockets,” Perry spokesman Mark Miner told Politico.


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source: Wall Street Journal (Koppel, 8/22)


Commentary:  The Cole Legal Group asks where you stand on the issue?  In other words, do you agree or disagree with Perry in the matter of Tort Reform?

Texas Supreme Court clarifies scope of recoverable amount in personal injury lawsuits.

The Dallas Morning News (8/9, Roberson) reported, clarifying a 2003 tort reform law, the Texas Supreme Court ruled in July "that plaintiffs cannot base personal injury lawsuits on hospitals' billed charges, but rather the lower amount the hospitals finally accepted as payment."

The ruling stems from a case in which Aaron Haygood successfully sued Margarita Garza de Escabedo for $110,000 in hospital bills and surgeries after she hit his car. But since Haygood was covered by Medicare Part B, his bills dropped to $27,700. The court overturned the decision saying a plaintiff can only recoup what his insurer pays and whatever "the hospital has a legal right to recover."

Hot Coffee, a must-see documentary about the untruths of Tort Reform

HOT COFFEE examines the dangers of so-called “tort reform” and its threat to our civil justice system. Using the now-infamous legal battle over a spilled cup of McDonald’s coffee as a springboard, the film follows four families, including McDonald’s plaintiff Stella Liebeck and KBR/Halliburton plaintiff Jaime Leigh Jones, whose lives have been profoundly affected by their inability to access the courts, and examines the role of corporations and a complicit media in promoting “tort reform.”

HOT COFFEE is available on HBO’s On-Demand service. And, DVDs will be available in the fall. You can sign up to pre-order DVDs here.

Watch the HBO Promo:

Watch the trailer: