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)

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)