COMMENTARY
Looking back at tort reform
BY CARLOS R. HAMILTON JR., MD 2013 is a year for all Texans to celebrate! This is the 10th anniversary of legislative achieve- ments that have greatly benefitted the general economy, medi- cal practice, and health care in our state. These achievements were the enactment by the Texas Leg-
islature and the signing into law by Gov. Rick Perry of House Bill 4 and the approval by Texas voters of the companion Con- stitutional amendment Proposition 12. This legislation was the result of years of effort by the medical and business com- munities to create a political mi- lieu in which comprehensive tort reform could be enacted and a judicial climate in which it could be sustained. HB 4 addressed bringing a balance to the civil justice system, mitigating the costs of litigation, and reducing the role of legal tort action in our society. These reforms included permitting juries to hear more evidence about the cause of an injury, expecting payment only from those causing harm and then only to the extent of their own fault, and limiting damages to what was actually incurred. These broad actions have con- tributed to the dramatic eco- nomic growth and job creation that has characterized the past decade in our state. From the medical liability perspective, the legislation
requires:
• A written medical report by a physician in the same or simi- lar field as the one being sued;
• A report that clearly identifies the appropriate standard of care and how it was violated; and,
• Delineation of specific damages resulting from the violation of the standard.
Access to health care by Texans
greatly improved as rural and border communities added needed specialists.
It also caps noneconomic damages at $250,000 for all physician defendants and an additional cap of $250,000 for each of up to two medical care institutions. Other previous plaintiff-friendly procedural devices, such as forum shopping, are eliminated. Prop 12 gave HB 4 full effect, establishing the authority of the legislature to limit damages, therefore overturning the 1988 Texas Supreme Court decision against caps on noneco- nomic damages. Voters approved this amendment in Septem- ber 2003, and HB 4 became the law in Texas. It is proper to celebrate these events of one decade ago, but it is the miraculous effects of those events that add poignancy to that celebration. Instead of physicians fleeing the state to avoid a hostile judicial environ- ment, the number of licensed physicians in Texas has nearly doubled and is growing at twice the rate of the state’s popula- tion. Access to health care by Texans greatly improved as rural and border communities add- ed needed specialists. Timely and lifesaving care can now be obtained in parts of our state where it previously was unavail-
able. The liability insurance market has seen an increase in the number of carriers, and the cost of insurance has significantly decreased. These savings have benefited all physicians in the state, and an improved fiscal position has permitted academic medical centers to expand specialty referral care throughout the state. As we and our patients acknowledge the value of HB 4 and
Prop 12, it is appropriate to be reminded of how the previously mentioned political milieu and judicial climate were changed to make possible these benefits. The need for medical tort reform dates back to at least the 1970s when the cost and availability of professional liability
November 2013 TEXAS MEDICINE 7
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