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EDITORIAL Med Malaise Here’s a problem-solving quiz: Let’s say you want to clear leaves from your yard. them into neat piles and haul them away in garbage bags, or lawn? Both methods will surely get the job doneone 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 thinktank 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 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 Perrywho will no doubt brag about tort reform throughout his reelection effortboasted 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 20012003in 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 18year-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 Hightowersor the senior abused in a nursing home or the surgery patient handicapped for lifewhat their tragedy is worth? Sure, medical malpractice premiums have dropped a bit. But at what cost? THE TEXAS OBSERVER I VOLUME 98, NO. 5 I A Journal of Free Iii;ices Since 1954 Founding Editor Ronnie Dugger Executive Editor Jake Bernstein Editor Barbara Belejack Associate Editor Dave Mann Publisher Charlotte McCann Associate Publisher Julia Austin Circulation Manager Lara George Art Director/Webmaster Matt Omohundro Poetry Editor Naomi Shihab Nye Copy Editors Roxanne Bogucka, Laurie Baker Staff Writers Forrest Wilder, Tim Eaton Editorial Interns Leah Caldwell, Rachel Mehendale, Sofia Resnick, Kelly Sharp, Elizabeth L. Taylor Contributing Writers Nate Blakeslee, Gabriela Bocagrande, Robert Bryce, Michael Erard, James K. Galbraith, Dagoberto Gilb, Steven G. Kellman, Lucius Lomax, James McWilliams, Char Miller, Debbie Nathan, Karen Olsson, John Ross, Andrew Wheat Staff Photographers Alan Pogue, Jana Birchum, Steve Satterwhite Contributing Artists Sam Hurt, Kevin Kreneck, Michael Krone, Gary Oliver, Doug Potter Editorial Advisory Board David Anderson, Chandler Davidson, Dave Denison, Sissy Farenthold, John Kenneth Galbraith, Lawrence Goodwyn, Jim Hightower, Kaye Northcott, Susan Reid Texas Democracy Foundation Board Lou Dubose, Molly lvins, Susan Hays, D’Ann Johnson, Jim Marston, Gilberto Ocafias, Bernard Rapoport, Geoffrey Rips, Sharron Rush, Ronnie Dugger In Memoriam Bob Eckhardt, 1913-2001, Cliff Olofson, 1931-1995 The Texas Observer \(ISSN 0040-4519/ righted 2005, is published biweekly except during January and August when there is a 4 week break between non-profit foundation, 307 West 7th Street, Austin, Texas 78701. Telephone E-mail [email protected] World Wide Web DownHome page . Periodicals Postage paid at Austin, TX and at additional mailing offices. Subscriptions One year $32, two years $59, three years $84. Full-time students $18 per year; add $13 per year for foreign subs. Back issues $3 prepaid. Airmail, foreign, group, and bulk rates on request. Microfilm available from University Microfilms Intl., 300 N. Zeeb Road, Ann Arbor, MI 48106. Indexes The Texas Observer is indexed in Access: The Supplementary Index to Periodicals; Texas Index and, for the years 1954 through 1981, The Texas Observer Index. POSTMASTER Send address changes to: The Texas Observer, 307 West 7th Street, Austin, Texas 78701. Books & the Culture is funded in part by the City of Austin through the Cultural Arts Division and by a grant from the Texas Commission on the Arts. PP Cultural Arts Division MARCH 10, 2006 THE TEXAS OBSERVER 3