- Moohr, Geraldine Szott and Sherman, Roger, Medical Malpractice Tort Reform in Texas: Treating Symptoms Rather than Seeking a Cure. Journal of Consumer & Commercial Law, Vol. 12, 2009; U of Houston Law Center No. 2010-A-37. Available at SSRN: https://ssrn.com/abstract=1707715
Abstract
The authors examine the consequences of medical malpractice tort reform in Texas and conclude that it has not actually discouraged the negligent practice of medicine in Texas. The state limited non-economic damage awards in medical malpractice cases and thereby reduced malpractice insurance premiums, but this treated only a symptom and did not address the underlying problem of malpractice. Several alternatives are proposed that would create a balance between compensating the most seriously injured plaintiffs and properly penalizing negligent doctors. Ensuring that patients receive adequate information about providers, increasing the use of physician gatekeepers in health insurance plans, and increased action from state medical boards are among the solutions offered to move the focus beyond insurance fees and back to reducing malpractice itself.
- Zabinski, Zenon and Black, Bernard S., The Deterrent Effect of Tort Law: Evidence from Medical Malpractice Reform (February 15, 2015). Northwestern Law & Economics Research Paper No. 13-09. Available at SSRN: https://ssrn.com/abstract=2161362or http://dx.doi.org/10.2139/ssrn.2161362
Abstract
A principal goal of tort law is to deter negligent behavior, but there is little empirical evidence on whether it does so. We study that question for medical malpractice liability, where prior studies have found weak, often null results. We examine whether state adoption of caps on non-economic damages – a central legal reform that reduces liability risk for providers – affects in-hospital patient safety. We use Patient Safety Indicators (PSIs) – measures of adverse events developed by the Agency for Healthcare Research and Quality – as proxies for overall safety. In difference-in-differences analyses of five states that adopt caps on non-economic damages during 2003-2005, we find strong evidence that patient safety gradually falls after the reforms, relative to control states. We also innovate in methodology, using a new, randomization inference-based approach to assess the statistical reliability of our results.
- Ottenwess, David M, Meagan A Lamberti, Stephanie P Ottenwess, and Adrienne D, Dresevic. Medical Malpractice Tort Reform. Radiology Management, 2011 Mar-Apr;33(2):30-5. https://www.thehealthlawpartners.com/files/rm332_p30-36_features.pdf
Abstract
A tort is generally defined as a civil wrong which causes an injury, for which a victim may seek damages, typically in the form of money damages, against the alleged wrongdoer. An overview of the tort system is detailed, specifically in the context of a medical malpractice lawsuit, in order to provide a better understanding of the practical evolution of medical malpractice litigation and its proposed reforms. Rising premiums and defensive medicine are also discussed as part of the tort reform dialogue. Because medical malpractice litigation will never disappear entirely, implementing sound risk management and compliance programs are critical to every radiology department in order to improve the safety and quality of the care that its radiologists and technologists provide.
- Swartz, Mimi. Hurt? Injured? Need a Lawyer? Too Bad! Texas Monthly, November 2005. https://www.texasmonthly.com/politics/hurt-injured-need-a-lawyer-too-bad/
Two years ago, rich and powerful Texans said lawsuits were ruining the state’s economy and needed to be fairer. Today, thanks to tort reform, they are fairer—for business. Ordinary people are out of luck.
- Lomax, John. Is It Time to Reform Tort Reform? Houstonia, October 2014. https://www.houstoniamag.com/articles/2014/9/30/justice-undone-torn-reform-gone-too-far-october-2014
Tort reform made sense to lots of people at the time, Stephen DiLeo included—that is, until a doctor removed his son’s brain tumor.
- Cohen, Steve. On Tort Reform, It’s Time to Declare Victory and Withdraw. Forbes, March 3, 2015. https://www.forbes.com/sites/stevecohen/2015/03/02/on-tort-reform-its-time-to-declare-victory-and-withdraw/#20d5f10863ea
It is time for legislators to recognize that they were hoodwinked, dismantle the so-called reforms, and begin to look for real solutions to make patients safer.
- Elbein, Saul. Anatomy of a Tragedy: The Story Behind ‘Sociopath Surgeon’ Christopher Duntsch. Texas Observer, Aug 28, 2013. https://www.texasobserver.org/anatomy-tragedy/
Dr. Christopher Duntsch’s patients ended up maimed and dead, but the real tragedy is that the Texas Medical Board couldn’t stop him.
- Painter, Robert. Two Texas Laws Shield Hospitals that “Hire” Incompetent, Bad Doctors. Painter Law Firm, March 28, 2017. http://www.painterfirm.com/a/203/Two-Texas-laws-shield-hospitals-that-hire-incompetent-bad-doctors#tab-1
Over the years, several of my clients have described their former surgeons as uncompassionate and butchers. When they ask whether something can be done about their surgeons’ medical license, or even criminal charges, I share the sad news about how Texas law bends over backward to protect hospitals and their surgeons—even the terrible ones.
- Jacob, Steve. Studies: Texas Tort Reform Has Had No Effect on Physician Supply, Lowering Costs. D CEO Healthcare, August 28, 2012. http://healthcare.dmagazine.com/2012/08/28/studies-texas-tort-reform-had-no-effect-on-physician-supply-lowering-costs/
Four researchers—including a University of Texas law professor—concluded that there was no evidence that Texas physicians were leaving the state prior to the 2003 law, or that there was a significant increase in physicians moving to Texas because of better liability climate.
- Rasansky, Jeff. Tort Reform FAILS to Reduce Health Care Costs in Texas. Rasansky Law Firm, October 30, 2014. https://www.jrlawfirm.com/blog/tort-reform-fails-to-reduce-health-care-costs-in-texas/
Many people believe that the high cost of health care in Texas (and the United States) is due in part to medical malpractice lawsuits. I mean, why wouldn’t people think this? This is the exact argument that was used by tort reform advocates to pass sweeping medical malpractice tort reform in Texas back in 2003. Well, a new study shows that this isn’t the case at all. Unfortunately, voters in Texas were tricked by big insurance, and all we got in return were fewer rights.
- Roser, Mary Ann. New study: Tort reform has not reduced health care costs in Texas, AMERICAN-STATESMAN, September 1, 2012. https://www.statesman.com/news/local/new-study-tort-reform-has-not-reduced-health-care-costs-texas/XJHJL3GWWdJtVa35WvZCCL/
The researchers, who include University of Texas law professor Charles Silver, examined Medicare spending in Texas counties and saw no reduction in doctors’ fees for seniors and disabled patients between 2002 and 2009. . . a report last fall in which the Ralph Nader-founded consumer group Public Citizen said it found Medicare spending in Texas rose much faster than the national average after tort reform. Health care spending has increased annually everywhere, the researchers said, including in the states with caps on malpractice payouts.
Silver and his fellow researchers’ unpublished study says Texas Medical Board data that Opelt cites on new physician applications and licenses [adding nearly 5,000 more physicians than can be accounted for by population growth] do not account for doctors who left the state or retired, creating vacancies for their jobs; physicians who don’t treat patients but do research or administrative work; and physician growth compared with other states. When those factors are weighed, Texas saw the number of direct patient care doctors grow more slowly after tort reform than it did before, the study says. Afterward, Texas did slightly worse than other states in attracting doctors, the study says.
- Carter, Terry. Tort Reform Texas Style. ABA Journal, October 2006. http://www.abajournal.com/magazine/article/new_laws_and_med_mal_damage_caps_devastate_plaintiff_and_defense_firms_alik/
Building on significant tort reform in 1995, the Texas legislature in 2003 dealt a near death blow to the practices of a lot of Texas lawyers, both for plaintiffs and defendants, particularly in health care litigation.
- Hyman, David A. and Silver, Charles and Black, Bernard S. and Paik, Myungho, Does Tort Reform Affect Physician Supply? Evidence from Texas (February 14, 2014). nearly final version, published in International Review of Law and Economics, Vol. 42, 2015, pp. 203-218; Northwestern Law & Econ Research Paper 12-11; Illinois Program in Law, Behavior and Social Science Paper No. LBSS12-12; U of Texas Law, Law and Econ Research Paper No. 225. Available at SSRN: https://ssrn.com/abstract=2047433or http://dx.doi.org/10.2139/ssrn.2047433
Abstract
Does state tort reform affect physician supply? Tort reformers certainly believe so. Before Texas adopted tort reform in 2003, proponents claimed that physicians were deserting Texas in droves. After tort reform was enacted, proponents claimed there had been a dramatic increase in physicians moving to Texas due to the improved liability climate. We find no evidence to support either claim. Physician supply was not measurably stunted prior to reform, and it did not measurably improve after reform. This is true for all patient care physicians in Texas, high-malpractice-risk specialties, primary care physicians, and rural physicians.
- 10 Years of Tort Reform in Texas Bring Fewer Suits, Lower Payouts. Insurance Journal, September 3, 2013. https://www.insurancejournal.com/news/southcentral/2013/09/03/303718.htm
Department of Insurance data shows medical malpractice claims, including lawsuits, resolved in a year fell by nearly two-thirds between 2003 and 2011 to 450. The average payout declined 22 percent to about $199,000. In the four years prior to the law, the average Texas doctor covered by the state’s largest malpractice insurer faced premium increases of 147 percent, according to the Department of Insurance. Jon Opelt, executive director of the Texas Alliance for Patient Access, said that since 2003, average malpractice insurance premiums have fallen 46 percent. Texas had 176.1 doctors per 10,000 residents in 2010. The national average is 219.5, putting Texas 46th in the country in active patient care physicians, according to the latest State Physician Workforce Data Book, which is produced by the Association of American Medical Colleges. No significant increase after 2003 tort reform.
- Economists Find Mixed Results on Tort Reform, PBS News Hour, Sep 25, 2009 https://www.pbs.org/newshour/health/health-july-dec09-malpractice_09-25
It’s clear that the laws do reduce costs for doctors. A study by Michael Morrisey, a health care economist at the University of Alabama-Birmingham, found that in states with damage caps, medical practitioners paid up to 25 percent less for their malpractice insurance premiums. . . those lower [malpractice] costs don’t necessarily get passed on to consumers. He found no difference in consumers’ employer-sponsored health insurance premiums between states with damage caps and those without. Some analysts argue that regardless of whether tort reform saves money or not, the current system does a disservice to many injured patients. Researchers estimate that despite all the talk of frivolous lawsuits, less than three percent of injuries caused by medical malpractice lead to a court case. . . it’s particularly difficult for patients with significant but not catastrophic injuries to get compensation.
“That’s because there are so many expensive and difficult hoops [to filing a lawsuit], many inserted by tort reformers,” he says. “So it has to be a bigger case to be worth it from the lawyer’s perspective.”
- Martin Makary, M.D., M.P.H., and Michael Daniel, Johns Hopkins University School of Medicine. Study Suggests Medical Errors Now Third Leading Cause of Death in the U.S. May 3, 2016. https://www.hopkinsmedicine.org/news/media/releases/study_suggests_medical_errors_now_third_leading_cause_of_death_in_the_us
Physicians advocate for changes in how deaths are reported to better reflect reality
FAST FACTS
- 10 percent of all U.S. deaths are now due to medical error.
- Third highest cause of death in the U.S. is medical error.
- Medical errors are an under-recognized cause of death.
- MEDICAL ERRORS, American Association for Justice. https://www.justice.org/what-we-do/advocate-civil-justice-system/issue-advocacy/medical-errors
Research has confirmed that 440,000 people die every year because of preventable medical errors. Preventable medical errors are the third leading cause of death in the United States and cost our country tens of billions of dollars a year. The civil justice system gives families of patients who have died or have been injured by medical negligence an avenue to seek accountability. It also provides an incentive to health care providers to improve patient care. Removing that accountability and incentive leaves people at risk for more injuries from negligent care and does nothing but help the insurance industry’s bottom line.
- Studdert, David M. and David G. Stevenson. Nursing Home Litigation and Tort Reform: A Case for Exceptionalism. The Gerontologist. Oct 2004, Vol. 44, No. 5, 588-95. https://academic.oup.com/gerontologist/article/44/5/588/798637
Abstract
The medical malpractice crisis that is currently spreading across the United States bears many similarities to earlier crises. One novel aspect of the current crisis is the explicit inclusion of litigation against nursing homes as a target of reform. Encouraged by the nursing home industry, policymakers are considering the extension of conventional medical malpractice tort reforms to the nursing home sector. In this article, we caution against such an approach. Nursing home litigation has a number of distinctive features that raise serious questions about the wisdom of implementing reforms generically across the care continuum. Drawing on findings from our previous study of nursing home litigation, we outline these features and argue for careful attention to them as policymakers evaluate options for reform.
- Rustad, Michael L. Neglecting the Neglected: The Impact of Noneconomic Damage Caps on Meritorious Nursing Home Lawsuits. The Elder Law Journal, January 2007, Vol. 14 No. 2, p. 331, 2006; Suffolk University Law School Research Paper No. 07-07. http://publish.illinois.edu/elderlawjournal/files/2015/02/Rustad.pdf
Meritorious nursing home lawsuits serve as valuable tools for policing a nursing home industry rife with instances of negligence, malpractice, neglect, and abuse. Recent proposals advocate a national cap of $250,000 on all noneconomic damages awarded in medical malpractice lawsuits. Many states have already adopted similar caps. In this empirical study of three hot-spot jurisdictions (California, Texas, and Florida), Professor Rustad shows the disparate effect of noneconomic damage caps on the elderly residents of nursing homes due to the general lack of meaningful economic damages among typical nursing home claimants. Noneconomic damage caps effectively doom many elder abuse and mistreatment claims by removing incentives
for attorneys to accept these meritorious lawsuits.
- Hernandez, Nina and Annamarya Scaccia. Sounding the Alarm on Texas’ Nursing Home System. The Austin Chronicle, October 20, 2017. https://www.austinchronicle.com/news/2017-10-20/sounding-the-alarm-on-texas-nursing-home-system/
25% of the state’s 1,200 long-term care centers have been cited for serious standard deficiencies. Advocates [for change] say a weak regulatory system and lack of awareness have allowed abuse to persist in nursing homes, even those that have incurred fines for infractions.
- Hollis, Mark. |Report: Abuse in Texas Nursing Homes on The Rise. AARP Texas, 01/26/2015 https://states.aarp.org/report-abuse-in-texas-nursing-homes-on-the-rise/
Texas is facing a dramatic rise in elderly abuse inside Texas nursing homes, according to a recent report by KVUE-TV in Austin. To improve nursing home quality in Texas during the 2015 legislative session, AARP supports recommendations offered by the Texas Sunset Advisory Commission to impose serious sanctions against nursing homes that have serious and repeat violations.
- Bello, Mark M. Too Many Lawsuits or Bad Nursing Home Care? February 1, 2018. https://www.markmbello.com/single-post/2018/02/01/Too-Many-Lawsuits-or-Bad-Nursing-Home-Care
One of the largest nursing home companies has filed bankruptcy, claiming that more than 160 lawsuits led to its financial demise. It is time corporations stop blaming their troubles on lawyers, lawsuits, or the state legislature. We don’t need arbitrary damages caps for someone else’s pain or suffering; we have juries to make these decisions based on the merits of each case. The company should focus its efforts on providing quality patient care, thus avoiding lawsuits completely. Focus on safety instead of making it harder for innocent victims to seek compensation and refusing to operate in states that don’t promote your greedy tactics. Practice that and you would not be faced with 160 lawsuits.
- Marselas, Kimberly. Critics say Texas-based nursing home operator using bankruptcy to hide from dozens of lawsuits, McKnight’s Long-Term Care News, January 29, 2018. https://www.mcknights.com/critics-say-texas-based-nursing-home-operator-using-bankruptcy-to-hide-from-dozens-of-lawsuits/printarticle/740001/
Preferred Care of Plano filed for bankruptcy in November claiming in court that more than 160 lawsuits led to its financial demise. But critics say the company is trying to avoid accountability. “If their quality of care were higher, they wouldn’t be getting sued,” said Dallas lawyer Gabriel Canto, who represents the family of a Preferred Care resident who died after falling twice in the same day.
- Rasansky, Jeff. How does Texas tort reform affect a nursing home injury or abuse case? December 7, 2013. https://www.jrlawfirm.com/library/texas-nursing-home-laws-tort-reform/
. . . some recent tort reform laws and Texas Supreme Court decisions have compromised the safety of our elder loved ones and make it increasingly difficult for abused and neglected nursing home residents to secure compensation for what they have endured . . . all three of the above examples [laws and court decisions] don’t represent reform that will keep our nursing home residents safe and allow them to seek justice after wrongdoing. Instead, they represent reforms that give unfair advantages to the nursing homes themselves.
- Schrama, Martin P. Will Tort Reform Affect Nursing Home Care? The National Law Review, Thursday, July 20, 2017. https://www.natlawreview.com/article/will-tort-reform-affect-nursing-home-care
The latest tort reform measure, H.R. 1215, the Protecting Access to Care Act of 2017, would place caps on medical malpractice damages, limit attorney fees, and modify statutes of limitations. Among other changes to current law, non-economic damages in medical malpractice lawsuits would be limited to $250,000 – and juries would not be informed of this cap on damages. H.R. 1215 would apply to health care lawsuits where coverage for the care was provided or subsidized by the federal government, including through subsidies or tax benefits.
Proponents of the bill claim that the bill would lower medical liability insurance premiums, and by extension, reduce the incidence of so-called “defensive” medical treatments and lower costs associated with federal health care programs such as Medicaid.
The study concluded that the threat of malpractice litigation may serve as a deterrent to low quality care in nursing homes as measured by increases in RN-to-total staffing ratios in response to rising malpractice threat and by a reduction in pressure sores among highly staffed facilities. The deterrence effect was strongest among for-profit, chain, and large facilities. The deterrence effect may prompt low-staffed facilities to increase the RN ratio.
- Kavanagh KT, Calderon LE, Saman DM. The relationship between tort reform and medical utilization. Journal of Patient Safety. 2014 Dec;10(4):222-30. https://www.ncbi.nlm.nih.gov/pubmed/24104483
- The comparison of the Dartmouth Atlas Medicare Reimbursement Data with Malpractice Reform State Rankings, which are used by the PRI, did not support the hypothesis that defensive medicine is a driver of rising health-care costs. Additionally, comparing Medicare reimbursements, premedical and post medical tort reform, we found no consistent effect on health-care expenditures. Together, these data indicate that medical tort reform seems to have little to no effect on overall Medicare cost savings.