Law Feature - August 2007
Four years ago, physicians and medical students banded together
against personal injury trial lawyers and urged their patients to
vote yes on Proposition 12, a state constitutional amendment that
authorized the legislature to enact noneconomic damage caps in
medical liability lawsuits. Following a hard-fought crusade, the
efforts paid off, resulting in a significantly more favorable
medical liability climate for the state.
Today, physicians enjoy lower medical liability premiums, more
predictability in the risk assumed, and the resulting increase in
competition among insurance carriers. The state also is seeing
overwhelming interest from out-of-state doctors wishing to join
practices here as tort reforms make Texas more attractive to new
physician recruits. Fewer lawsuits and more doctors mean patients
have more access to care.
But trial lawyers were back at the Capitol this year trying to
pass Senate Bill 468 to reduce the burden of proof in emergency
medical care cases. The bill, sponsored by Sen. Rodney Ellis
(D-Houston), would have lowered the emergency standard for
liability from "willful and wanton" - as established in
the 2003 law - to "simple negligence with a clear and
convincing standard of proof."
The bill went nowhere. Working to protect 2003 health care
liability reforms, the Texas Medical Association coordinated
physician meetings with local government officials and legislators
to send a message that such a change would adversely affect
patients' access to emergency care. With help from the Texas
Alliance for Patient Access (TAPA) and the Texas Hospital
Association (THA), the campaign proved successful, and SB 468 never
could achieve the two-thirds vote necessary to be heard on the
Passage of SB 468 would have been bad news for patients and the
physicians who respond to emergency medical situations, says TAPA
Executive Director Jon Opelt. Because physicians often are
unfamiliar with the medical history of patients who go to the
emergency room, Mr. Opelt says, they need additional protection
offered under the 2003 reforms.
A watered-down standard of proof would have made it easier for
physicians to be sued, physicians would have faced greater
obstacles in providing quality care, and patients would have
potentially suffered from understaffed emergency care
"Those who are affected by this bill are the sickest and most
seriously ill patients," Mr. Opelt said. "These patients are in
need of lifesaving care, and in emergency situations, doctors are
forced to make quick decisions with often limited information. The
author of the bill basically attempted to return the law to
pre-reform language, and that was unacceptable."
Darren Whitehurst, director of TMA's Division of Public Affairs,
credits the association's successful blockage of SB 468 to
physicians' grassroots efforts to educate their local legislators
about how the bill would have harmed patients' access to
high-quality emergency care. "The doctors back home did a great job
of bringing the issue to the forefront so it was visible in the
Senate," he said.
Austin King, MD, immediate past chair of TMA's Council on
Legislation and a member of the TMA Board of Trustees, advises
physicians to establish and maintain relationships with
"All politics are local. It's very important that physicians
keep in contact with their local representatives and that they be
able to walk in and visit with them," Dr. King said. "They can't
wait until they need politicians' support introducing or blocking a
bill. It's important to build trust with these leaders so they'll
listen to doctors when they need their help."
Victory Through Defeat
By killing SB 468 before it reached the Senate floor, TMA upheld
the 2003 language that requires a "willful and wanton" burden of
proof in emergency medical care. According to Mr. Whitehurst, this
higher standard for liability requires trial attorneys to show
gross, rather than simple, negligence.
Dan Finch, legislative affairs director for TMA, calls the
blockage of SB 468 a "cautionary tale" and warns that trial lawyers
will continue to try to chip away at protections accomplished
through 2003's tort reforms. "The fact that Senate Bill 468 didn't
pass probably isn't that surprising," he said. "But we're a little
more vulnerable on these issues than we should be at this point in
The reason for that susceptibility, says Dr. King, is that trial
lawyers are looking for ways to improve business.
"The number of suits trial lawyers have been able to file has
dropped significantly. When we had the workers' comp reforms, they
forced a lot of the plaintiff's attorneys out of that field. Tort
reforms have had a similar effect on trial lawyers," Dr. King said.
"They will continue to attack on several fronts. They're not going
to have the entire tort reform overturned but will look at small
TMA, in conjunction with TAPA and THA, approached the blockage
of SB 468 by focusing on patient care, a strategy Dr. King touts as
pivotal in stopping the legislation from reaching the Senate
"The main point is to provide the legislators involved with
facts as to what actually is going on with tort reforms in place
now - the facts of increased access to medical care. We
can also document large numbers of doctors moving to Texas because
of the medical liability climate here," he said.
In fact, the Texas Medical Board (TMB) is tackling a backlog of
about 2,250 license applications and will soon receive some relief,
thanks to House Bill 15, which allocates more than $5.2 million to
TMB for additional staff and technology upgrades to expedite the
physician-licensing process. (See "
But just four years ago, physicians weren't flocking to Texas.
Dave Kittrell, MD, chair of the board of the Texas Medical
Liability Trust (TMLT) and a San Antonio obstetrician-gynecologist,
says many obstetricians and other physicians in high-risk
specialties were contemplating an exit from the medical field.
Skyrocketing insurance premiums were making it more difficult to
continue to practice in the state.
"Tort reform turned everything around 180 degrees. It was the
savior of Texas medicine," Dr. Kittrell said. "It saved a lot of
doctors who were stopping services."
Preserving the Past
A team effort led to the tort reform package achieved in 2003.
TMLT, TAPA, and many others in the medical community joined TMA and
continued to work to preserve the progress made through Proposition
Albert Gros, MD, chair of TMA's Council on Legislation, says
preserving tort reform is crucial to improving quality of health
care and patient access, while increasing the physician workforce
and the number of insurers in Texas. "If tort reform is diluted, in
a worst-case scenario, we could return to the situation we had
before 2003, when we had a dwindling number of insurance carriers,"
Texas now boasts 30 medical liability insurance companies, a
drastic increase from the four that would underwrite policies for
doctors in 2003. With a current policyholder count of 14,224, TMLT
insures more physicians in Texas than any other carrier and has
reduced rates four times: 12 percent in 2004, 5 percent in 2005 and
2006, and 7.5 percent this year.
Dr. Kittrell implores physicians to be vigilant in protecting
the hard-won tort reform package by fighting proposed legislation
like SB 468.
"Anything that our adversaries want to change, it's to make it
more advantageous for them," Dr. Kittrell said. "That decreases the
appeal of Texas as a good place to practice medicine. Then patients
lose, because doctors stop practicing and move to states with a
better medical liability environment."
Recognizing the need to continue the fight to defend tort
reform, Mr. Opelt cautions: "Since the passage of the 2003 reforms,
we have seen a gain in the number of doctors willing to take
emergency calls. The situation has improved, but our hospitals
still struggle to cover their emergency departments today. That is
why it is so important that the 2003 reform language remain
can be reached at (800) 880-1300, ext. 1385, or (512) 370-1385;
by fax at (512) 370-1629; or by e-mail at
TMA worked tirelessly in the 80th Texas Legislature to
Healthy Vision 2010
goals of protecting the 2003 tort reforms and preventing the
creation of new causes of action for physicians and other health
care professionals. With coordinated efforts among physicians and
health care organizations, medicine emerged victorious, and trial
lawyers were unable to weaken Texas' medical liability
Here is an overview of medicine's accomplishments this
- Gov. Rick Perry vetoed House Bill 3281, known as the paid or
incurred bill, on June 15. In a message to members of the Senate
and House of Representatives, Governor Perry explained that HB
3281 would have reversed 2003 tort reform language that
reasonably limited the amount of medical bills a plaintiff could
recover to the amount actually paid or incurred by the individual
or the insurer. When determining medical damages in a lawsuit,
the governor said, these higher bills would deceive jurors by
presenting them with an inflated amount of medical damages. TMA
worked hard to ensure the bill that reached the governor's desk
excluded medical liability cases.
- Senate Bill 1560 would have allowed medical liability
plaintiffs to recover noneconomic damages per plaintiff instead
of per defendant in a wrongful death case. The bill never made it
out of committee.
- House Bill 15 allocates more than $5.2 million to the Texas
Medical Board (TMB) for additional staff and technology upgrades
to speed up the physician-licensing process. The board is
currently experiencing a processing backlog of about 2,250
license applications. The legislation took effect June 15.
Back to article