No Better Care, Thanks to Tort Reform~4 min read

Published in The Texas Tribune by guest columnist, Charles M. Silver

In 2006, Dr. Howard Marcus wrote that Texas’ 2003 tort reform statute sparked an “amazing turnaround” in which doctors came to Texas in droves, instead of leaving the state as they had before. He was doubly wrong. Texas neither lost doctors before 2003 nor gained them especially quickly in subsequent years. In fact, according to statistics published by the Texas Department of State Health Services (TDSHS), the supply of active, direct patient care (DPC) doctors per capita grew faster from 1996 to 2002 than at any time after 2003. If the pre-reform growth rate had simply continued, Texas would have seven more DPC doctors per 100,000 residents than it does today.

Not only did pre-reform Texas outpace post-reform Texas; in the post-reform period Texas fell farther behind the average U.S. state. In 2002, Texas had 61 fewer DPC physicians per 100,000 residents than the average state. In 2010, Texas lagged the average state by a whopping 76.5 doctors per 100,000 residents, according to data published by the American Medical Association (AMA). Texas’ downward slide is also accelerating, meaning that Texas is falling behind the average state both farther and faster each year.

These statistics are public and well known. They can be found at TDSHS’s website and in a report Public Citizen published earlier this year. In view of this, it is shameful that Marcus, his colleagues at the Texas Alliance for Patient Access and Republican politicians continue to mislead. They are blatantly exploiting the ignorance of people who have better things to do than read up on the number of doctors in the State.

Marcus and his accomplices know about TDSHS’s numbers but have ignored them in all prior public statements I’ve found. They want to give glowing reports, so they focus on the number of new licenses granted by the Texas Medical Board (TMB) instead. TMB’s count of new licenses is misleading, however, because it ignores the number of doctors who leave the state, retire, die or stop seeing patients for other reasons. Suppose 100 calves were born into a herd of cattle that also lost 250 adult animals because of the heat and drought. The rancher who owned the herd would say he was down 150 head. Marcus and his buddies would say the herd grew by 100.

Marcus also gives tort reform credit for every doctor who showed up at Texas’ doorstep after the tort reform statute took effect. He ignores the fact that new doctors entered the state every year before 2003, and that many more would have come in later years in the absence of tort reform. It is easy to net out the historical growth rate, but that would make the 2003 statute seem less successful, so Marcus doesn’t do it.

The 2003 statute did have two demonstrable effects. First, it made doctors, hospitals and malpractice insurers millions of dollars richer by devaluing the claims of injured patients. Various sources report that premiums for liability coverage fell by half, and a study by a research group to which I belong finds that, after 2003, the number of dollars flowing to patients declined by more than 70 percent. This is a straightforward redistribution of wealth from malpractice victims to the proponents of tort reform. Second, the statute put many contingent fee lawyers out of business. If you’ve tried to find a lawyer to handle a med mal claim, you’ll have discovered this truth first-hand.

In my opinion, these were the only effects the 2003 statute could reasonably have been predicted to have. They were also the effects, I believe, that the statute’s proponents — including Marcus, Gov. Rick Perry and other Republicans — wanted. Everything else, such as the promised improvements in access to health care and reductions in health care costs, was cotton candy spun to win Texans’ votes and hide the proponents’ self-interest.

I doubt that this column or anything else will persuade Marcus to change his tune. Every day brings fresh evidence that the leaders of America’s medical profession will say anything and everything to avoid liability for medical errors, regardless of the truth. On October 15, 2011, Dr. Robert M. Wah, the AMA’s chairman, published a letter in The New York Times claiming that “medical liability reform provides a solid solution for reducing the federal deficit.” I’m surprised he didn’t add that it cures baldness, colds and rheumatism too.

Charles M. Silver is the Roy W. and Eugenia C. McDonald Endowed Chair of Civil Procedure at the University of Texas Law School