Section 10: 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. Tort reform, however, is a never-ending political and legislative battleground in Texas. We cannot relax our guard against direct attacks on the 2003 law, attempts to weaken the Texas Medical Board, or cynical schemes to turn any individual’s final days into a lawyer’s playground.

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 medical expenses, lost wages, or other economic damages. Texas voters then approved Proposition 12, a constitutional amendment that ratified the legislature’s authority to adopt 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 lower liability insurance rates and fewer non-meritorious lawsuit filings.

Because of liability reform, good physicians continue to flock to Texas from other states. A stable liability climate — not the norm in most states — along with a fast-growing population and the need for more physicians has helped to fuel this increase. In the latter part of the decade following the 2003 reforms, the annual number of newly licensed physicians was about 70-percent higher than it was in the early years of the decade. Since 2008, Texas has ranked second nationally in percentage physician growth and in attracting the most physicians who treat patients. This trend looks to continue for years to come. 

Using the most conservative figure available, Texas added enough direct patient care physicians since 2003 to provide 26 million more patient visits in 2014 than likely would have occurred without liability reform. 

According to the Texas Alliance for Patient Access, the ranks of rural obstetricians have grown nearly three times faster than the state’s rural population since 2003. Thirty-two rural counties have added at least one obstetrician. Fifteen rural counties that lacked a cardiologist now have one. Eleven counties have added their first general surgeon. 

Fifty counties that had no emergency medicine physician now do. Forty of those counties are rural. 

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“I honestly do not believe I would still be in medicine today if not for Proposition 12.” 
— Family medicine physician, 37, Nueces County 

While Texas leads the nation in medical liability reform legislation, some groups would like to see the law weakened or destroyed. Ever since 2003, adversaries and disingenuous front groups have tried to discredit the reforms with aggressive media outreach and misleading “research.” Each session, bills are introduced that attempt to create new causes of action or would weaken, roll back, or eliminate key elements of the reforms, such as lifting the caps on noneconomic damages and protections for emergency services. 

Improve funding for the Texas Medical Board 
Texas continues to set new records for the number of medical license applications submitted to the Texas Medical Board (TMB) for processing. In 2013, TMB received its highest-ever number of applications at 4,610.[49] At press time, TMB was headed for a record 5,100 applications for 2014. This is good news for Texas patients and for Texas’ economy. 

TMA surveyed [50] Texas physicians in 2013 — 10 years after medical liability reform — to ascertain the impact of the reforms on patient care. The findings indicated that:  

  • Texas’ liability climate was one of the top three reasons newly located physicians decided to practice in Texas (39 percent). 
  • The professional liability climate was “important” or “very important” in 63 percent of physicians’ decision to practice in Texas. 
  • Compared with 2003, almost three-quarters (72 percent) of physicians who have attempted to recruit new physicians to their practice, hospital, or community have found it easier to do so. Eighty percent were overwhelmingly successful in their attempts to recruit “high-risk” specialists such as obstetricians, neurosurgeons, pediatric subspecialists, and trauma surgeons. 
  • Physicians who were practicing in Texas then are now providing new or renewed services to their patients (13 percent). 
  • Physicians are accepting more high-risk patients (36 percent). 
  • If the 2003 Texas medical liability reforms were repealed by the Texas Legislature or nullified by federal law, 42 percent most likely would reduce or eliminate high-risk procedures. Younger physicians more likely would reduce or eliminate high-risk procedures. Older physicians more likely would retire early. 

With the phenomenal growth in physicians practicing in Texas, it is critical that TMB has the resources needed to process new physician applications in a timely manner, as well as keep up with new legislative mandates to protect patients and improve efficiencies for physicians’ practices. 

As a key part of the 2003 medical liability reforms, the legislature enhanced the board’s enforcement capabilities and imposed a surcharge on physicians’ licenses to pay for staffing and infrastructure improvements. TMA supported the surcharge then and continues to do so today. 

TMB, on average, collects in excess of $70 million each biennium from physicians and others who it licenses. Licensure fees make up more than 50 percent of the revenue. TMB also collects another $31 million from physicians in an occupation tax. The board receives approximately one-third of the total revenue for operations. In fiscal 2014-15, the board’s appropriation was $23.2 million.[51] The remaining funds collected by the board go to the state’s general revenue fund. 

Lawmakers should direct physicians’ licensure fees to the board so it can better accomplish its mission, particularly since the actual number of licensees has exceeded the anticipated number in the budget for the past several sessions.

Oppose federal preemption of state civil justice reforms 
For decades, even before Texas passed our landmark medical liability reforms in 2003, organized medicine has pushed the U.S. Congress to enact national liability reforms based on the Texas and California tort models. 

TMA supports the enactment of fair federal medical liability reforms because we know the very positive effects of the 2003 Texas reforms. 

On the other hand, TMA and other state medical societies have been extremely diligent in ensuring that any national legislation under consideration — including pushes for federal tort reform — doesn’t reverse or supersede strong laws already on the books in state capitals around the country. 

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

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

  • 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 or physician faces. 

  • Require all revenue derived from physicians’ licensure fees be used to fund the fixed and variable costs associated with the Texas Medical Board’s operations. 

  • Oppose federal preemption of state civil justice reforms.