Medical Malpractice “REFORM” Failed Patients

Medical malpractice law in Texas has endured many major changes through the years.  These changes have made holding healthcare providers responsible for harm much more difficult and extremely expensive.  The first attempt at so-called “reform” occurred in 1977 and the latest version of reform took effect in 2003.  In every instance, the Legislature said it was responding to a “crisis” of “frivolous lawsuits” and claimed that changes in the law would result in preventing doctors from fleeing the state to avoid malpractice suits; ensure that doctors would be available in rural areas; reduce the cost of medical care to patients and insurance companies; and prevent unnecessary testing and the practice of defensive medicine.  The price of all of these promised benefits was the loss of the legal rights of injured patients in the form of a “cap” (limitation) on the amount of recoverable damages and a special set of protective laws which apply only to malpractice cases.

After more than 15 years of “reform”, the final verdict is in.  Changes in the law drastically reduced the overall number of malpractice suits (which was actually the Legislature’s sole intent), but not a single other promise has been fulfilled.

Medical care in the United States is the most expensive in the world by far and climbing rapidly, even though our outcomes are no better and often not as good as other industrialized, first-world nations which pay much less for care.

Health insurance is still very costly and access to medical care is beyond the reach of many except through the emergency room.

The number of doctors coming to or leaving Texas has not changed.

Rural areas are still underserved because doctors want to practice in cities to make more money and have access to better facilities.

Doctors order just as many tests as they ever did, maybe more, and the “fee for service” economic model encourages over treatment.

The frequency of medical negligence has not been reduced.

Meanwhile, countless patients harmed by medical negligence have been unable to find representation at all or have been short-changed by the legal system.

In short, medical malpractice reform has emphatically failed the public.

Having practiced in the medical malpractice field for many years, I have probably interviewed hundreds of people who believed they had been harmed by medical negligence.  There is one thing all of these people have in common: each and every one of them said at some point in the initial client interview that they hoped bringing a lawsuit would prevent some other patient from being harmed.  It is remarkable for a lawyer to be able to say that every client in a particular type of case said the same thing, but it is true.  All of them believe that if they don’t do something, someone else will be hurt. They believe that the doctor, nurse or hospital will change their behavior because of their suit and it may also imply that they believe a court, a governmental agency, a professional licensing board or even a group of professional peers will take action to discipline or correct the health care provider. Is this belief justified?  A new study has been done which provides a partial answer.

The researchers relied on data available through the National Practitioner’s Data Bank and other databases.

Here are some of the findings:

• About 2% of doctors account for 39% of all claims in the United States.
• More than 90% of doctors who had 5 or more paid claims kept practicing.  These doctors more often than average moved to solo practices and small groups where there is even less oversight.
• Lawsuits seem to peak when doctors are around 40.
• Only 0.2% of doctors account for 12% of claims.
• Physicians with more claims tended to shift their type of practice.  Physicians with 5 or more claims were more than twice as likely to shift into a different practice area.

The biggest disappointment is that the malpractice litigation system seems to have a very limited effect on the quality of care. That is to say, bad doctors practice bad medicine regardless of lawsuits.

Knowing that medical malpractice reform accomplished nothing and cost patients their right to full compensation, and knowing that at least some health care providers do not seem to be motivated to improve the quality of care based on lawsuits, what should be done?

The Legislature should allow injured patients to recover their full measure of damages.  Since 2003, injured patients cannot recover more than $250,000 for their non-economic damages regardless of the severity of their injuries. So that you might understand this completely, imagine that you are hit by a truck and that your non-economic damages are $1,000,000.  If you suffer the same injuries due to medical malpractice, you can recover only $250,000 and this amount has not been increased since 2003.  Because of the $250,000 cap and the extraordinarily high cost of malpractice litigation, many malpractice cases are not economically viable to pursue.  Of course, this is exactly what the Legislature intended, i.e., they intended to make it financially impractical to sue health care providers.  Consequently, many justified malpractice cases are never filed.

The bad bargain made by the Legislature didn’t work for anyone other than health care providers and their liability insurance companies. There is no good reason not to restore the full legal rights of injured patients. In fact, one has to wonder if limiting damages has had the perverse consequence of making a malpractice claim nothing to worry about. Second, the State Board of Medical Examiners should begin to aggressively police the medical profession. That is its job and the evidence shows that they are not doing it.  At present, it is extremely rare for the Board to take action against a doctor for committing a medical error, i.e., for violating the standard of care. This should not be the case.    When bad doctors, so-called “frequent fliers,” are self-identified by multiple claims, the Board should take action to rectify dangerous behavior.  If health care providers don’t fear lawsuits, they should at least be held accountable by their own Board.