Section 6: Protect and Promote a Fair Civil Justice System

In our generation, Texas has taken no more important step to strengthen our health care delivery system than passing the 2003 medical liability reforms. The 2003 law swiftly ended an epidemic of lawsuit abuse, brought thousands of sorely needed new physicians to Texas, and encouraged the state’s shell-shocked physicians to return to caring for patients with high-risk diseases and injuries. As recently reported in The New York Times,[82]however, tort reform is a never-ending political and legislative maneuver in Texas. We cannot relax our guard against direct attacks on the 2003 law, attempts to weaken the Texas Medical Board, nor cynical schemes to turn Texans’ final days into lawsuit battlegrounds.

Preserve Texas’ landmark liability reforms
In 2003, the Texas Legislature passed sweeping liability reforms to combat health care lawsuit abuse, reverse skyrocketing professional liability insurance premiums, and ensure Texans’ access to high-quality medical care. The centerpiece of those reforms was a $750,000 stacked cap on noneconomic damages assessed against physicians and health care facilities (hospital system, nursing home, and such) in a liability judgment. There is no cap on economic damages. Texas voters then approved Proposition 12, a constitutional amendment that ratified the legislature’s authority to impose these important reforms.

The reforms have worked. They’ve lived up to their promise. Sick and injured Texans have more physicians to deliver the care they need, particularly in high-risk specialties like emergency medicine, obstetrics, neurosurgery, and pediatric intensive care. Physicians also have benefited from much lower liability insurance rates and fewer non-meritorious lawsuit filings.

Because of liability reform, good physicians are flocking to Texas from other states. Since passing the medical liability reforms in 2003, Texas has gained more than 28,000 new physicians licensed to practice in the state. 

Using the most conservative figure available, Texas has added enough direct patient care physicians since 2003 to provide 10.5 million more patient visits in 2011 than likely would have occurred without liability reform. [83] 

The number of obstetricians in rural Texas has grown 31 percent since the passage of Proposition 12, nearly three times faster than the state’s rural population growth. Nine rural counties that had no obstetrician in 2003 now have one. Compared with pre-reform, 16 counties that had no cardiologists now have one, 11 now have a general surgeon, and four now have a neurosurgeon. [84] 

The special emergency care provisions of the law have saved lives by helping guarantee Texas patients have access to critical and timely care in the emergency department. Forty counties that had no emergency medicine physician in 2003 now do. Thirty-two of the 40 counties are rural. [85]  

While Texas leads the nation in medical liability reform legislation, some would like to see the law weakened and/or destroyed. Ever since 2003, adversaries have tried to discredit the reforms with aggressive media outreach and misleading research. Each session, bills are introduced that would lift the caps on noneconomic damages and protections for emergency services.

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The 2011 session also saw an effort to dramatically change the Texas Advance Directives Act (TADA). That 1997 law protects patients from discomfort, pain, and suffering due to excessive medical intervention in the dying process. In 2011, opponents proposed bills that would have set a dangerous precedent for the legislature to mandate physician services and treatments that could be medically inappropriate, outside the standard of care, or unethical. Because medicine is both an art and a science and no one person can dictate the final stages of disease, physicians need safe harbors for treating our sickest patients, especially in their final days.

Ensure a fair and strong Texas Medical Board
TMA believes that the Texas Medical Board (TMB), not a civil courtroom, is the appropriate venue for handling most complaints against physicians. As a key part of the 2003 medical liability reforms, lawmakers significantly strengthened the powers of TMB. With major support from TMA, the legislature enhanced the board’s enforcement capabilities and imposed a surcharge on physicians’ licenses to pay for staffing and infrastructure improvements. It also directed TMB to focus on quality-of-care and impairment issues. A strong and fair medical board is critical to keeping the reforms intact.

In 2011, TMA fought off efforts to strip the medical board of much of its ability to protect patients from truly bad doctors. Instead, Texas enacted measures to improve the function of TMB, make its processes more transparent, and ensure fairness to physicians and their patients.

Oppose federal preemption of state civil justice reforms
For decades, even before Texas passed our landmark medical liability reforms in 2003, medicine has pushed the U.S. Congress to enact national liability reforms based on the Texas and California models. This is a highly partisan issue. Over the years, a number of bills have passed the Republican-controlled House of Representatives only to die in the Senate, where personal injury trial lawyers have heavy influence.

TMA supports the enactment of fair, federal medical liability reforms because we know the very positive effect of the 2003 Texas reforms: better access to care because of the growing number of physicians relocating to Texas.

On the other hand, TMA and other state medical societies also have been extremely diligent in ensuring that any national legislation under consideration — including pushes for federal tort reform — doesn’t reverse or supersede stronger laws already on the books in state capitals around the country. Physicians also remain vigilant about laws that would, intentionally or not, introduce new legal reasons — known as “causes of action” — for people to sue physicians.

Both of those issues came to play during the 2009 congressional debate over the Patient Protection and Affordable Care Act (PPACA). Several members of the Texas delegation in Washington took steps to make certain that the PPACA would neither overstep Texas’ liability reforms nor create new causes of action against physicians.
 

 TMA Recommendations: 

  • Protect Texas’ existing medical liability reform laws, including caps on noneconomic damages and protections for emergency services.


  • Ensure an effective, fair, and just Texas Medical Board (TMB) that focuses on quality-of-care issues.


  • Require the entire amount of revenue derived from physicians’ licensure fees be used to fund the fixed and variable costs associated with TMB operations.


  • Stop efforts to create new causes of actions against physicians and other health care providers who are delivering evidence-based and clinically appropriate care.


  • Oppose federal preemption of state civil justice reforms.


  • Maintain the integrity of the Texas Advance Directives Act, free from exposure to medical liability suits. Do not yield to forces that seek to introduce litigious strategies into one of the hardest moments any family faces.

 


Healthy Vision 2020 

 


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