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Texas BlogWire

The Truth About Texas Tort Reform: More Doctors, Worse Care

by: Phillip Martin

Mon Oct 08, 2007 at 08:30 AM CDT

This past Friday, the New York Times ran a piece on the recent influx of doctors to Texas ("More Doctors in Texas After Malpractice Caps," October 5, 2007). The article cited the long waiting lines for doctors wanting to receive their license to practice medicine in Texas:
The Texas Medical Board reports licensing 10,878 new physicians since 2003, up from 8,391 in the prior four years. It issued a record 980 medical licenses at its last meeting in August, raising the number of doctors in Texas to 44,752, with a backlog of nearly 2,500 applications. Of those awaiting processing, the largest number, after Texas, come from New York (145), followed by California (118) and Florida (100).
But are Texas patients receiving better care? Another set of statistics -- which was not included in the NY Times article -- shows that there has been a significant increase in disciplinary actions against doctors. The following figures are from the Texas Medical Board:
Total Disciplinary Actions:
2002: 187
2003: 277
2004: 256
2005: 304
2006: 335
Eric Turkewitz, a personal injury attorney in New York, also notes that the figures don't look much better for 2007:
By the way, 2007 isn't shaping up much better, with 88 doctors disciplined at the Medical Board's August meeting, 30 in June, 34 in April, and 41 in February. That's 193 so far, with two more meetings to go, on a pace to well exceed the 2002 numbers.
Ultimately, it is better for Texas to attract high-quality doctors --- but not if recruiting those doctors jeopardizes the health care of Texans. Texans for Lawsuit Reform -- the group that pushed tort reform through in 2003 -- would disagree with me, I'm sure. But they also hired as a TLR spokesmen a doctor who misdiagnosed bone cancer in a 16-year old girl, so their credibility on promoting patient's rights comes into question.

Prop 12 was all about the politics -- Republicans wanting to limit the size of lawsuits so that trial lawyers wouldn't have as much money to donate to Democrats. Prop 12 was never about Texas patients having greater access to quality health care -- and all you have to do is look at the Texas Medical Board's own disciplinary action history I cited above to believe me.

For more on the push for tort reform in 2003, read the Texas Monthly article, "Huty? Injured? Need a Lawyer? Too Bad!"

Tags: On the Issues, Texas medical board, TLR, tort reform, (All Tags)
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Malpractice Insurance Costs (0.00 / 0)
Anyone know what impact of the tort reform had on malpractice insurance premiums?  It's seems to me that this impact would be the first place to look to determine whether tort reform "worked".

I think you're missing the point (0.00 / 0)
When TLR pitched Med Mal to the legislature...the entire thing is based on the premise that "doctors are responsible and don't do things wrong".

They sold this whole package on the myth that doctors don't screw up but still get sued and those "frivolous" claims are driving doctors out of the state because they are paying super-high premiums to defend against "baseless" claims.

The disciplinary actions, I think, are telling.

Progressively practice what you preach...don't just stick it on your bumper.

[ Parent ]
Lot of Misinformation in this Post (0.00 / 0)
  Disciplinary actions were indeed mentioned in the NYT article -- and then dismissed as likely due to increased regulatory diligence.  The article mentions that not a single doctor new to Texas has thus far been accused of harming a patient.  It also mentions that malpractice insurance premiums have dropped by 20%+ since the 2003 tort reform.
  A good rule would be to require commenters on a particular article to have actually read it.  Here it is.
October 5, 2007
More Doctors in Texas After Malpractice Caps
HOUSTON, Oct. 4 - In Texas, it can be a long wait for a doctor: up to six months.

That is not for an appointment. That is the time it can take the Texas Medical Board to process applications to practice.

Four years after Texas voters approved a constitutional amendment limiting awards in medical malpractice lawsuits, doctors are responding as supporters predicted, arriving from all parts of the country to swell the ranks of specialists at Texas hospitals and bring professional health care to some long-underserved rural areas.

The influx, raising the state's abysmally low ranking in physicians per capita, has flooded the medical board's offices in Austin with applications for licenses, close to 2,500 at last count.

"It was hard to believe at first; we thought it was a spike," said Dr. Donald W. Patrick, executive director of the medical board and a neurosurgeon and lawyer. But Dr. Patrick said the trend - licenses up 18 percent since 2003, when the damage caps were enacted - has held, with an even sharper jump of 30 percent in the last fiscal year, compared with the year before.

"Doctors are coming to Texas because they sense a friendlier malpractice climate," he said.

Some experts say the picture may be more complicated and less positive. They question how big a role the cap on malpractice awards has played, arguing that awards in malpractice lawsuits showed little increase in the 12 years before the law changed.

And some critics, including liability lawyers, question whether the changes have left patients more vulnerable. With doctors facing reduced malpractice exposure, they say, many have cut back on their insurance, making it harder for plaintiffs to collect damages. Moreover, the critics say that some rural areas have fewer doctors than before.

The measure changing Texas' malpractice landscape, Proposition 12, was narrowly approved in a constitutional referendum on Sept. 12, 2003. It barred the courts from interfering in limits set by the Legislature on medical malpractice recoveries.

For pain and suffering, so-called noneconomic damage, patients can sue a doctor and, in unusual cases, up to two health care institutions for no more than $250,000 each, under limits adopted by the Legislature. Plaintiffs can still recover economic losses, like the cost of continuing medical care or lost income, but the amount they can win was capped at $1.6 million in death cases.

All but 15 states have adopted some limits on medical damage awards, according to the National Conference of State Legislatures. But the restrictions in Texas go further than in many states, where the limits are often twice as high as they are here.

"Other states have passed tort reform, but Texas implemented big changes all at once," said Lisa Robin, a vice president for government relations at the Federation of State Medical Boards, a national umbrella group based in Dallas.

Some experts say that the lack of a state income tax, combined with what William M. Sage, a law professor at the University of Texas in Austin, called a "relatively rapid transition in its tort reputation as a plaintiff-friendly state," has contributed to the state's appeal to doctors.

Dr. Timothy George, 47, a pediatric neurosurgeon, credits the measure in part with attracting him and his sought-after specialty last year to Austin from North Carolina. "Texas made it easier to practice and easier to take care of complex patients," he said.

The increase in doctors - double the rate of the population increase - has raised the state's ranking in physicians per capita to 42nd in 2005 from 48th in 2001, according to the American Medical Association. It is most likely considerably higher now, according to the medical association, which takes two years to compile the standings. Still, the latest figures show Texas with 194 patient-care physicians per 100,000 population, far below the District of Columbia, which led the nation with 659.

The Texas Medical Board reports licensing 10,878 new physicians since 2003, up from 8,391 in the prior four years. It issued a record 980 medical licenses at its last meeting in August, raising the number of doctors in Texas to 44,752, with a backlog of nearly 2,500 applications.

Of those awaiting processing, the largest number, after Texas, come from New York (145), followed by California (118) and Florida (100).

In some medical specialties, the gains have been especially striking, said Jon Opelt, executive director of the Texas Alliance for Patient Access, a medical advocacy group: 186 obstetricians, 156 orthopedic surgeons and 26 neurosurgeons.

Adding to the state's allure for doctors, Mr. Opelt said, was an average 21.3 percent drop in malpractice insurance premiums, not counting rebates for renewal.

To help state officials monitor the influx of doctors, the medical board recently got money to hire six more employees, said Dr. Patrick, the director since 2001. It now has 17 lawyers, compared with no more than four when he arrived, he said.

Since 2003, investigations of doctors have gone up 40 percent, patient complaints have gone up 25 percent, and disciplinary actions about 8 percent, said Jill Wiggins, a board spokeswoman. But the figures may reflect greater regulatory diligence rather than more misconduct, Ms. Wiggins said.

Of the 10,878 physicians licensed since 2003, she said, 14 have been the subject of disciplinary actions, on charges as diverse as addiction problems and record-keeping infractions, with none accused of harming patients.

But there are those who are skeptical about the caps on malpractice.

"We've lost our system of legal accountability, said N. Alex Winslow, executive director of Texas Watch, a consumer advocacy group. "Just having more doctors doesn't make patients safer. It remains to be seen who is coming to our state."

Demian McElhinny, 33, a former hospice pharmacy technician in El Paso, recently settled claims against a neurological surgeon for spinal surgery that left him disabled and his family impoverished; he said he emerged with "pennies on the dollar." His wife, Kelly, found work as a school bus driver, he said, while "I'm at home being a housewife to my two boys."

Mr. McElhinny's surgeon, Dr. Paul Henry Cho, later admitted to the medical board that he was addicted to a narcotic cough syrup and had written fraudulent prescriptions. Dr. Cho's license to prescribe drugs was suspended, although it was soon restored, and he moved from El Paso to a hospital in Fort Worth. He did not return a call to his office, and his lawyer declined to comment.

Paula Sweeney, a leading Dallas liability lawyer and a past president of the Texas Trial Lawyers Association, said, "A lot of legislators are aware they went too far in '03."

Texas Watch, in a report last February, questioned the decline in malpractice insurance rates, saying they must be seen in light of increases of as much as 147 percent before the 2003 referendum. And Bernard S. Black, a law professor at the University of Texas, has published studies showing little increase in Texas insurance awards from 1990 to 2002, casting doubt, he said, on the "malpractice insurance crisis."

Professor Black also said that data was too scant to attribute the rise in the number of doctors to the damage caps. "I don't doubt there's an effect," he said, "but I think it's a small one."

Texas Watch also contends that many poor rural areas of Texas remain underserved, and rural West Texas has actually lost several physicians since 2003. But Dr. James Baumgartner, a pediatric neurosurgeon at Memorial Hermann Hospital in Houston, is among many doctors who believe the new malpractice caps have helped.

Dr. Baumgartner said it was now far easier to recruit doctors to a state where close to 30 percent of children lack health insurance and Medicaid reimbursements are low.

Dr. Keith Hill, a recently discharged Army doctor with a specialty in foot and ankle reconstruction, said the change in state law was the reason he moved from Georgia to open a practice in Beaumont, a poor city in East Texas long seen as plaintiff-friendly.

Had it not happened, said Dr. Hill, 40, "I can say I would not have considered Texas."

No misinformation (0.00 / 0)
First of all, I linked to the entire post -- so it is unnecessary to just "copy and paste" the entire article as a comment. Not only is it unnecessary, it is something we strongly discourage. But that's fine.

Second, here is what the article states:

Since 2003, investigations of doctors have gone up 40 percent, patient complaints have gone up 25 percent, and disciplinary actions about 8 percent, said Jill Wiggins, a board spokeswoman. But the figures may reflect greater regulatory diligence rather than more misconduct, Ms. Wiggins said.

Of the 10,878 physicians licensed since 2003, she said, 14 have been the subject of disciplinary actions, on charges as diverse as addiction problems and record-keeping infractions, with none accused of harming patients.

First of all, the jump from 2002 to 2006 is much greater than 8 percent. That's not misinformation, that's just math. An increase from 187 to 335 represents a 79% increase, not an 8% increase.

Secondly, tort reform changed the laws not just for doctors coming into the state, but for all doctors. So the fact that relatively few of the new doctors have faced disciplinary actions is irrelevant.

I also believe the 20% represents a false number, and I would refer you to this report by Texas Watch as my reference.

I appreciate if you disagree with me, and we can have a discussion about the disagreements. But to insist that I was spreading "misinformation" is simply wrong.

Now, a very great man once said that some people rob you with a fountain pen.

[ Parent ]
Bad Link (0.00 / 0)
Phillip--Texas Watch apparently uses a temporary query system, so you link is bad.  However, you can use the following link.  Now, just click on the first report under the heading "Studies and Research." 

Here is what the report says about premiums.

In the run-up to the debate on Proposition 12, insurance companies increased premiums on doctors as much as 147.6%. While rates have dropped somewhat overall, the reductions do not come close to making up for the overcharges doctors faced prior to Proposition 12. Through March 2006, medical liability premiums have fallen just 13.5% market wide.

Disciplinary actions were indeed mentioned in the NYT article -- and then dismissed as likely due to increased regulatory diligence.

To be clear Buck, the article claimed that a Medical Board spokesman dismissed the disciplinary actions.

[ Parent ]
Some facts (3.00 / 2)
HB 4 (the 2003 medical liability reforms) has a track record of improving access to medical care.

Sick and injured Texans now have more physicians who are more willing and able to give them the medical care they need, closer to home thanks to the state's 2003 health care liability reforms, according to the results of a 1996 survey conducted by the Texas Medical Association.

The online survey of 1,154 physician members of TMA found that since September 2003:

- Doctors find it much easier to recruit new physicians to their communities, even among high-risk specialties and in the "lawsuit war zones" of south and east Texas.
- Texas physicians are much more likely to accept patients with complex or high-risk problems, and many feel comfortable offering their patients new services.

Now, these facts from 2007:

Texas licensed a record 3,324 new doctors this year; 808 more than last year.
- Since the passage of the 2003 reforms, the state has improved its national standing from 48th to 42nd in the American Medical Association's measurement of patient-care doctors per capita.
- The physician growth rate in El Paso is 76 percent greater than pre-reform.
- The physician growth rate in San Antonio is 55 percent greater than pre-reform.
- The physician growth rate in Houston is 36 percent greater than pre-reform.

After years of decline, the ranks of medical specialists are growing.
- After a net loss of 14 obstetricians from 2001 to 2003, Texas experienced a net gain of 186 obstetricians.
- Texas experienced a net loss of 9 orthopedic surgeons from 2000 to 2003.
- Since tort reform, the state experienced a net gain of 156 orthopedic surgeons.
- Texas has experienced a net gain of 26 neurosurgeons since Prop 12, including one each in the medically underserved communities of Corpus Christi and Beaumont.
- If the pending applicants are approved, the statewide total of pediatric intensive care, pediatric emergency medicine and pediatric infectious disease specialists will double.

Doctors are bringing critical specialties to underserved areas:
- Since the passage of reforms, the Rio Grande Valley has added 189 physicians. That represents a robust 16.6% increase in Cameron County and an even greater 17.9% increase in Hidalgo County; both growth rates exceeding the state average.
- Jefferson, Nueces and Victoria counties saw a net loss of physicians in the eighteen months prior to tort reform. Currently, all three counties are producing impressive gains; adding much-needed specialists and emergency medicine physicians.

Per Texas Department of Insurance, average liability insurance rates for Texas physicians have dropped by more than 20 percent since passage of Prop 12. For many physicians in many parts of the state, liability premiums are now approaching what they were in the late '90s. See http://www.texmed.or... for the latest rates from Texas Medical Liability Trust and note that the 2008 rates do not factor in two large dividends that the company announced in the past two years.

Director of Communications Texas Medical Association

[ Parent ]
"Right On Target: Status of the Physician Workforce in Texas" (0.00 / 0)
That's a study you should have read before peddling phony public relations scare tactics.

The Texas Medical Association ran a shameful scare campaign threatening Texas patients with loss of access to medical care in an attempt to gain legal immunity for medical errors.

Shortly before this scare campaign, however, the Texas Medical Association did an internal study of the size of the physician workforce here in Texas. 

Contrary to the lobbyist generated scare campaign, the non-lobbyist generated workforce study concluded that Texas has the "Right on Target" number of physicians serving Texas. 

This study, entitled "Right On Target: Status of the Physician Workforce in Texas," even projected a slight surplus of physician in Texas in the future.

This nonsense is pure propaganda!

[ Parent ]
Thanks (0.00 / 0)
I sincerely appreciate the facts and information. It's good to have all the numbers at my fingertips, something I didn't have before.

To clarify, though, I'm not arguing that more doctors are bad for Texas. I'm arguing that at what cost to patient care have we made it more attractive for doctors. If we have either:

1) Reduced the deterrence-effect of med-mal lawsuits to the point where doctors are not as careful when they treat patients; or

2) Not sufficiently addressed the rising costs of premiums...

...then I do not believe that HB 4 in 2003 was a success. Per my first concern, the increase of disciplinary action is still suggestive of the idea (at least) that quality of patient care is dropping.

Per the second concern, I cannot argue the fact that premiums are lower --- your own numbers show as much. I do not, however, think that our current premiums are any better than they were in 1999...and to say we are "approaching what they were in the late '90's" is only true if you think that being twice as high is better than being three times as high (in some instances). It'd be the same as saying, "8 years ago, I got something for free. Then I had to pay $100 for it, and now I only pay $50 for it." I'm still much worse off than I was eight years ago, agree?

I've also read the Texas Watch Report that the premiums might have been unfairly increased before when they shouldn't have.

That being said, I appreciate your facts and figures and will certainly link to your comment and provide this information with any further posts I may do on the subject matter. Thanks for posting on the site.

Now, a very great man once said that some people rob you with a fountain pen.

[ Parent ]
If it's facts you want, UT Law Professor Charles Silver rebutted this (0.00 / 0)
misleading propoganda:


In 2003, the Texas legislature adopted a comprehensive package of tort reforms designed to greatly reduce the frequency of medical malpractice lawsuits, the size of malpractice payments, and physicians' insurance premiums. Supporters of the reforms contended that if patients' rights were slashed, access to health care would greatly increase.

Soon after the amendments passed, tort reform groups began trumpeting their success, claiming that doctors are moving to Texas in droves. ... These assertions should be met with skepticism. The annual change in the supply of Texas physicians reflects two factors: the entry of new doctors and the departure of old ones. Because the assertions quoted above ignore physician departures, which occur in large numbers every year, the picture they convey is incomplete. To determine whether the 2003 tort reforms actually caused physician supply to increase, one must examine the total physician population and the net rate at which it changed. When one does, one sees that the 2003 reforms have not improved access to care. In 2004 and 2005, Texas' doctor population grew more slowly than it did from 1990 to 2002.

Information on the number of Direct Patient Care Physicians practicing in Texas can easily be obtained from the Texas Dept. of State Health Services. ...  The population of Texas physicians actually experienced its most dramatic growth from 1997 to 2000, years during which Texas was supposedly building toward or experiencing a liability crisis of epic proportions.

In fact, growth rates for the post-reform years were below the Texas norm, as Table 1 makes clear. From 1990-2002, the number of physicians practicing in the state grew at an average rate of 3.21% per year and 6.71% every two years. In 2004 and 2005, supply grew more slowly, averaging only 1.98% per year and 4.74% over two years. Taking account of exits as well as entries, it is clear that Dr. Marcus' assertion of "staggering" growth in the post-reform era is false.
By contrast, that impact of the 2003 reforms on Texas patients' rights has been enormous, judging from early reports. The 2005 Annual Report of the Medical Liability Benefit Plan for the University of Texas System describes the recent history of medical malpractice lawsuits against all U.T. health care institutions. From 2002 to 2005, new lawsuits fell 55%, from 60 to 27. New claims fell 36%, from 163 to 105. Open claims and lawsuits fell 28%, from 354 to 256. All three drops would be even bigger if one used 2003 as the base year. The recent dramatic increase in the profitability of malpractice insurers and the related declines in doctors' liability premiums were purchased at the expense of injured patients.

In sum, the 2003 Texas reforms transferred a lot of wealth from malpractice victims, their families, employers, and health insurers to physicians and their liability insurers. This was the main object of the 2003 reforms, and the reforms achieved it. But the reforms have not increased physician supply, which grew at a sub-par rate in the post-reform years. The facts show yet again how wealthy and concentrated interest groups use the political process to advantage, at the expense of groups whose members are anonymous and dispersed.


[ Parent ]
Yet another good source (0.00 / 0)
I'm stoked by all the articles! I'm going to have to take some weekend in between classes and really delve into anything. I feel like the NY Times article just scratched the surface of what is a very real, very important issue in Texas that --- depending on what happens with the Texas House this cycle -- could/should be in play in the next legislative session.

Now, a very great man once said that some people rob you with a fountain pen.
[ Parent ]
Insufficient Time Horizon (0.00 / 0)
I haven't looked too carefully at the numbers myself.  But, from glancing at these reports, it sounds like the Medical Board is taking an insufficient time horizon.  Essentially, the year before tort reform was really an outlier, so recent trends are really just a correction, and none of this was a genuine shift in the trend.  Other factors, such as the bond market, have also had a correction, which reduces insurance rates as well.  Here are two older reports from the GAO that might help:

[ Parent ]
Here are the facts and sources busting the hospital/HMO lobby's lies (0.00 / 0)
In mid-September of 2003, Texans voted 51%-49% to amend the Texas Constitution to limit Texans' right to just compensation when they have been maimed, crippled, or killed by careless hospital administrators, nursing homes, doctors, and HMOs. 

Inspiring a false fear of the imaginary threat against access to health care was the hospital/HMO lobby's main tactic in passing the amendment.

But the Texas Department of State Health Services and Texas Medical Board keep track of such statistics about whether doctors were leaving Texas or migrating into Texas.

In the decade from 1994 to 2003, the number of physicians in Texas grew an average of 3.8% each year.

In the four years since the passage of limits on responsibility for medical carelessness, the number of physicians in Texas has grown by an average of only 2% each year.  In fact, from 2004 to the present, there has not been a single year where the growth in the number of physicians in Texas has equaled the average growth from the previous decade:

1994 - 24,993 Physicians - 5.6% growth from previous year
1995 - 25,683 Physicians - 2.8% growth from previous year
1996 - 25,963 Physicians - 1% growth from previous year
1997 - 28,007 Physicians - 7.9% growth from previous year
1998 - 28,778 Physicians - 2.8% growth from previous year
1999 - 30,348 Physicians - 5.5% growth from previous year
2000 - 31,769 Physicians - 4.7% growth from previous year
2001 - 32,281 Physicians - 1.6% growth from previous year
2002 - 33,094 Physicians - 2.5% growth from previous year
2003 - 34,432 Physicians - 4% growth from previous year
2004 - 34,904 Physicians - 1.4% growth from previous year
2005 - 35,811 Physicians - 2.6% growth from previous year
2006 - 36,450 Physicians - 1.8% growth from previous year
2007 - 37,177 Physicians - 2% growth from previous year

The hospital/HMO lobby lobby's access to health case propaganda was a lie, plain and simple, and the attempt to cover their lie with misleading statistics is shameful.

[ Parent ]
Regression Analysis (0.00 / 0)
Thanks for the link Bob.  I did a quick linear regression analysis (yes, I should have used an exponential one but this is a short time period).  I did one for the entire horizon and one for the time prior to the amendment.  Both R^2 values were 99%, suggesting that the linear model was extremely accurate (so enough from the exponential clowns).  Below shows the dates, the real number of physicians, the predicted number based upon the regression of the entire horizon, the predicted number based upon the pre-amendment time horizon, and the residuals of both lines.

6/1/1994 24,993 24,989 24,698 4 295
6/1/1995 25,683 25,952 25,745 -269 -62
3/1/1996 25,963 26,675 26,531 -712 -568
4/1/1997 28,007 27,721 27,666 286 341
9/1/1998 28,778 29,088 29,152 -310 -374
9/1/1999 30,348 30,052 30,198 296 150
9/1/2000 31,769 31,018 31,248 751 521
10/1/2001 32,281 32,061 32,381 220 -100
9/1/2002 33,094 32,945 33,341 149 -247
9/1/2003 34,432 33,909 34,388 523 44
9/1/2004 34,904 34,875 35,438 29 -534
10/1/2005 35,811 35,918 36,570 -107 -759
9/1/2006 36,450 36,802 37,531 -352 -1,081
8/1/2007 37,177 37,684 38,489 -507 -1,312

Those negative residual values at the end there suggest that the number of direct care physicians has been less than expected since tort reform.

The only assumption made here was that the data from the Department of State Health Services (link) are accurate and collected and represents the first of the month.  The linear regression was done using Microsoft Excel.

[ Parent ]

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