“We’ve been successful at educating and electing legislators who understand that we need a stable tort environment in which physicians can concentrate on patients, not lawsuits.”
Texas’ cap on noneconomic damages is immune to consti- tutional challenges in state court, thanks to Proposition 12.
Tort reform survives session Before the 2011 legislative session, TAPA and TMA anticipated trial lawyers would attempt to modify or repeal several provi- sions of Texas’ tort reform. According to Mr. Hull, TAPA monitored almost 900 bills, as well as hundreds of amendments, during the regular and spe- cial sessions. “TAPA was more visible this session, due in part to the work
of TAPA staff and lobbyists during the interim. TAPA talked to every member in the interim and alerted them to our interests, listened to their concerns, and tried to educate them about the real effects of House Bill 4,” he said. “Arming our elected officials with information and resources made an enormous difference.”
Chief among the anticipated attacks this session was a
threat to the $250,000 cap on noneconomic damages. TAPA prepared for attempts to raise the cap, attach an exception to the cap, create an exception to the cap for a person without significant economic loss in the form of lost wages, or attach a cost-of-living adjustment to the cap. TAPA and TMA also worried emergency room protections contained in the 2003 tort reforms could be affected. They anticipated the filing of a bill that would extend emergency care protections only to Good Samaritans, not to all medical professionals who provide medical care in the emergency room and elsewhere. Fortunately, for the fourth successive legislative session,
Texas’ medical liability lawsuit reforms emerged intact. The expected attack from the trial lawyers lost steam due in part to a major shift in the Texas House of Representatives as a result of the November general election, Mr. Hull says. Repub-
18 TEXAS MEDICINE September 2011
licans picked up 22 seats, gaining a supermajority in the House. Dr. Teuscher says support from
Gov. Rick Perry, as well as TMA’s ef- forts to educate legislators about tort reform, helped shield tort reform this session. “We’ve been successful at educat- ing and electing legislators who un- derstand that we need a stable tort environment in which physicians can concentrate on patients, not lawsuits,” he said. For continued success in the courts and the legislature, Dr. Malone says, physicians need to support TMA in its efforts to protect the noneconom- ic damage cap and other provisions of tort reform. The association has worked hard to establish tort reform and has been fighting efforts to weak- en it in the courts and legislature.
Dr. Malone says physicians also need to be diligent in de-
creasing defensive medicine. He says physicians need to work with their specialty societies to hold down costs associated with the practice of defensive medicine.
Studies of private sector physicians by The Gallup Organi- zation and Jackson Healthcare last year found 73 percent and 92 percent of private-sector physicians, respectively, admitted to practicing defensive medicine. The groups also found that physicians estimate defensive medicine practices cost the Unit- ed States from $650 billion to $850 billion annually. “We don’t want to eliminate testing and imaging that’s nec-
essary. We want to do away with tests and medical care per- formed as a means to prevent a lawsuit,” Dr. Malone said. Dr. Butler says that while Texas achieved a stout reform package that has proved resilient, physicians must continue to thwart legal battles waged by the trial lawyers. “The trial lawyers are well-organized and well-funded,” he
said. “They’re trying to chisel away at tort reform via many avenues of attack. We have to keep up the fight.” n
Crystal Conde is associate editor of Texas Medicine. You can reach her by telephone at (800) 880-1300, ext. 1385, or (512) 370-1385; by fax at (512) 370-1629; or by email at
crystal.conde@
texmed.org.
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