Here’s a problem-solving quiz: Let’s say you want to clear leaves from your yard. Would you: a) rake them into neat piles and haul them away in garbage bags, or b) detonate a plastic explosive on your lawn? Both methods will surely get the job done—one just causes more collateral damage. If you chose option b, you might have a future in the Texas Legislature. It’s been almost three years now since the Lege saw doctors paying inflated premiums for liability insurance and reached for the legislative explosive: a cap of $250,000 on the amount of pain and suffering damage awards Texans can win in medical malpractice lawsuits.
Advocates for the cap, you may recall, insisted that too many frivolous lawsuits were boosting insurance premiums—driving doctors from Texas and causing a health care crisis. Recently, the political jostling has begun in earnest over whether the damage cap worked. In op-eds, press accounts, and think-tank reports, tort reform advocates have tossed around a lot of impressive figures. For instance, the number of lawsuits has decreased, which has led to an 11.7 percent average drop in medical malpractice premiums, according to an analysis by the tort reformers at the Texas Alliance for Patient Access (TAPA). The group also hypes state figures that show 3,000 new doctors came to the state in the two years after the damage cap went into effect. In the tort reform worldview, all this means better health care. As Gov. Rick Perry—who will no doubt brag about tort reform throughout his reelection effort—boasted in his early campaign ads, “Lawsuit reform is bringing better health care to millions.”
If you’re thinking there has to be a catch, you would be right. Alex Winslow with the consumer-advocacy group Texas Watch says some of the tort reformers claims are, “the best example of playing fast and loose with statistics that I’ve ever seen.” It is true that 3,000 new doctors came to Texas between 2003-2005. What tort reformers don’t mention, Winslow notes, is that 3,000 new doctors also arrived between 2001-2003—in the two years before the damage cap. In fact, doctors have flocked to Texas at that same rate going back to the mid-1990s, according to the state Board of Medical Examiners. So much for the idea that high premiums were driving physicians away. As for premiums, the rates have gone down somewhat, though no one knows for sure by how much: The Texas Department of Insurance hasn’t released complete rate data on medical malpractice insurance since late 2004. Winslow says TAPA’s 11.7 percent figure is misleading because only half the companies in the market have cut their rates. Taking the whole market into account, Texas Watch roughly estimates that premiums have dropped 5 percent overall.
Since the Lege insisted on damage caps instead of more moderate reforms, such as stricter regulation of insurance companies, we’ve seen slight reductions in medical malpractice premiums.
But there’s ongoing collateral damage. On February 28, the parents of 18-year-old Josh Hightower filed a lawsuit against Baylor Medical Center in Dallas, where in May 2004 their son received a transplanted kidney infected with rabies, the Associated Press reported. He died six weeks later. Was it malpractice? At this point, no one can say for sure. If it was negligence, the Hightower family could likely win, at most, $250,000. That’s not much of a deterrent to bad medicine. More than that, what right does the state have, instead of a jury, to tell the Hightowers—or the senior abused in a nursing home or the surgery patient handicapped for life—what their tragedy is worth? Sure, medical malpractice premiums have dropped a bit. But at what cost?