The Battle for Medical Liability Reform Moves to the Ballot Box
Cover Story -- August 2003
By Ken Ortolon
Texas physicians notched their biggest legislative victory in years in May when the Texas Legislature passed House Bill 4, a sweeping package of tort reforms that place a cap on noneconomic damages in medical liability cases. But the legislative fight to enact the hard-won tort reform was only half the battle.
To rein in skyrocketing medical liability premiums and to protect Texans' access to health care, physicians and a broad coalition of health care and business groups are waging another fight. This time it's for passage of a proposed constitutional amendment (House Joint Resolution 3 by Rep. Joe Nixon and Sen. Jane Nelson) that would authorize the legislature to enact damage caps, thus ensuring that HB 4's caps take effect immediately.
The proposed amendment will be put before the voters as Proposition 12 on Saturday, Sept. 13. Texas Medical Association leaders say it is critical that physicians and TMA Alliance members mobilize to turn out voters in support of Proposition 12.
"Passage of House Bill 4 and the resolution that authorized Proposition 12 have gotten us only halfway toward where we need to be for meaningful tort relief," said Houston internist Spencer Berthelsen, MD, chair of TMA's Council on Legislation. "The other half is passing the constitutional amendment. We have to keep up the steam to make sure we get it through."
The Constitutional Question
Proposition 12 is one of 22 proposed constitutional amendments to be presented to voters on Sept. 13. It is the only one, however, likely to generate much statewide interest.
The ballot language for Proposition 12 is the following: "The constitutional amendment concerning civil lawsuits against doctors and health care providers, and other actions, authorizing the legislature to determine limitations on noneconomic damages."
Dr. Berthelsen says passage of the amendment is critical to cut off potential court challenges to the noneconomic damage caps in HB 4 -- which include a $250,000 cap for all physicians -- and to ensure that the caps immediately begin to help bring down medical liability premiums.
"Unless the amendment passes, there will be no immediate relief in liability premiums," he said. "We can expect the professional liability carriers to wait and see if the caps contained in House Bill 4 are deemed to be constitutional. Just by the nature of the court system, it will take a number of years before that's resolved at the Supreme Court level. In the meantime, professional liability carriers will not adjust their premiums."
The question over the caps' constitutionality is serious. In 1977, the legislature placed caps on both general and noneconomic damages in medical liability cases, but the Texas Supreme Court declared them unconstitutional in the late 1980s. The court said they violated state constitutional provisions guaranteeing open access to the courts.
"Proposition 12 is an amendment on the open courts provisions," said TMA General Counsel Donald P. Wilcox, JD. "If it fails, it places into question whether or not the noneconomic damage caps in HB 4 are constitutional."
Plaintiff's lawyers dominated the court in the late 1980s, but that's no longer true; thus, the caps in HB 4 might withstand a court challenge this time, Mr. Wilcox says. But passage of Proposition 12 would make that issue moot.
Building a Better Coalition
TMA and a coalition of medical specialty societies, hospitals, business groups, and others have formed the "Yes on 12" campaign to fight for passage of Proposition 12. The coalition includes groups such as the Texas Alliance for Patient Access, Texans for Lawsuit Reform, the Texas Civil Justice League, and the Texas Association of Business.
While business groups would not immediately be affected by the caps, they have joined the coalition because of their interest in maintaining affordable health care for their employees, says Ralph Wayne, president of the Texas Civil Justice League. "If we -- and that means all the companies and trade associations and chambers of commerce and businesses that we represent and all their employees -- are going to continue to have access to good health care in Texas, then we have to get this done in order to keep our physicians here in Texas."
Gov. Rick Perry's top political consultant Dave Carney, who is leading the Yes on 12 campaign, says trial lawyers will wage an aggressive campaign to defeat Proposition 12.
"Trial lawyers clearly are the one group that has the most to lose because their huge contingency fees and their blackmailing of corporate Texas and the medical industry will be over. Their reign of terror through the courtroom will end."
Mr. Carney expects trial lawyers to spend up to $15 million to defeat Proposition 12, but he says supporters of the amendment will win with a strong grassroots campaign.
"While we will have nowhere near the resources they have, we're a people-based organization," he said. "We're going to win by foot power. We will have the people power to put this thing forward."
Mr. Carney says the campaign has three goals: expanding the coalition supporting the amendment, communicating to voters why Proposition 12 is so important to keeping health care both affordable and available, and identifying and turning out voters who will support the proposition on election day.
While TMA will be working with the Yes on 12 coalition to generate public support for the amendment, it also will work internally to get physicians and alliance members involved in the campaign. Materials such as bumper stickers and slate cards similar to those that have been successful in state Supreme Court races will be available this month. Physicians and alliance members should contact either their county medical society or Physicians Caring for Texas, the special-purpose political committee that TMA created for the purposes of this campaign. Physicians Caring for Texas can be reached at (800) 880-1300, ext. 1363, or in Austin at (512) 370-1363.
Dr. Berthelsen says physicians need to discuss the amendment with their staff, family, friends, and patients. "Every Texas citizen is a patient at one time or another. That's an opportunity for us to communicate to them the need to pass Proposition 12 to maintain their access to medical care."
TMA President Charles W. Bailey Jr., MD, agrees. "Practicing physicians are going to have to educate their patients," he said. "In spite of the fact that we generally don't like to talk politics with patients in the office, it's critical that we do so when it directly affects their health care and the health care for their families. We can start with an apology and explain to them why it's essential that they get out and vote for the amendment."
Fort Worth and Austin political consultant Bryan Eppstein, who is coordinating TMA's efforts in support of Proposition 12, says the challenge for the amendment's supporters will not be convincing the public to support caps on noneconomic damages, but getting Texans to the polls. A statewide poll conducted for TMA in March showed 69 percent of Texans already support the caps.
"This issue is supported among Republicans, it's supported among Democrats, and it's supported among independents. It's supported among white voters, brown voters, and black voters," Mr. Eppstein said. "On Sept. 13, you're still going to have a majority of Texans supporting this proposition, but it won't matter if those people who support it don't go vote. It's all about getting people to go vote."
Trial lawyers won't be able to generate enough opposition to the damage caps to defeat Proposition 12 in the next few weeks, so they'll attempt to confuse voters about the real intent of the amendment, Mr. Eppstein says. Their hope will be to generate apathy among supporters and keep them from voting. Trial lawyers already have sent out one mass mailing that suggests the caps would benefit only HMOs and large insurance companies. (See "Refuting Trial Lawyer Myths About Medical Liability Reform.")
Additionally, the trial lawyers will try to turn out their own constituency -- anyone who has ever filed a lawsuit.
"Considering the fact that one lawsuit is filed every three minutes that the courthouse is open in Texas, the trial lawyers will be going to their own clients to turn out and vote against Proposition 12," Mr. Eppstein said.
Turnout historically is low in elections in which constitutional amendments are the only issues on the ballot. In 1991, when the constitutional amendment authorizing the state lottery passed, only 2 million voters cast ballots. Since then, no constitutional amendment election has drawn more than 1.2 million voters.
Mr. Eppstein expects that trend to continue this year. He estimates that fewer than 9 percent of registered voters, or about 1 million, will go to the polls Sept. 13. With a low turnout expected and the trial lawyers ramping up for all-out war, it is essential that physicians turn out their "medical family," he says.
"This is a true call to action for physicians," Mr. Eppstein said. "In an election with such a light statewide turnout, one person voting from each physician family is not acceptable. We need 100 percent participation by the broad TMA family. Every physician, every family member, every near neighbor, every employee in a physician's office needs to be encouraged to vote."
Determining Medicine's Future
Dr. Bailey says passage of Proposition 12 means much more to medicine than just a political victory. "It's critical that we try to rein in these runaway premiums," he said. "It's critical in a number of ways to the future of medicine and the availability of care for patients. Already in the Rio Grande Valley and the border counties things have reached a point where physicians in high-risk specialties can't even begin to afford to practice there."
But a "less obvious and extremely ominous problem" is the impact that the liability crisis is having on medical students and young physicians who are just now choosing their future career. Those students and physicians are being scared away from high-risk specialties such as neurosurgery and obstetrics, Dr. Bailey says. (See "Medical Discontent.")
"Most of these young people are not even considering these high-risk specialties, and the problem will only get worse as we move into the future," Dr. Bailey said. "We are going to have a very damaged medical care system unless we can control these runaway premiums. It is absolutely essential that we pass Proposition 12 and, therefore, it is absolutely essential that we educate the public that this is not a doctors-versus-lawyers issue. It is about the availability of care for them and their families."
Ken Ortolon can be reached at (880) 880-1300, ext. 1392, or (512) 370-1392; or by email at Ken Ortolon.
Key Dates in the Proposition 12 Election
||First day of early voting
||Last day to apply for a ballot by mail
||Last day of early voting
Protecting Health Without Raising Taxes
By Gov. Rick Perry
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