More Docs Messin’ w/ Texas… While Texas Messes with Patient-Plaintiffs

Kia Franklin

More Docs Messin’ w/ Texas… While Texas Messes with Patient-Plaintiffs

On the cover of today's NYT, medical malpractice tort "reform" in Texas. Although you've got to get two-thirds into the article to reach it, the article does include some voices of reason to offset its healthy dose of tort "reform" rhetoric about how the doom of the world has been caused by lawsuits. The entire article is worth reading, but there are some important points from the article that are good to consider when weighing the merits and benefits to patients (or lack thereof) of implementing restrictive tort "reform" measures like caps on non-economic damages in medical malpractice cases. See the excerpted sections below:

Doesn't having more doctors mean more access for patients to quality care?

“We’ve lost our system of legal accountability, said N. Alex Winslow, executive director of Texas Watch, a consumer advocacy group. “Just having more doctors doesn’t make patients safer. It remains to be seen who is coming to our state.”

Demian McElhinny, 33, a former hospice pharmacy technician in El Paso, recently settled claims against a neurological surgeon for spinal surgery that left him disabled and his family impoverished; he said he emerged with “pennies on the dollar.” His wife, Kelly, found work as a school bus driver, he said, while “I’m at home being a housewife to my two boys.”

Mr. McElhinny’s surgeon, Dr. Paul Henry Cho, later admitted to the medical board that he was addicted to a narcotic cough syrup and had written fraudulent prescriptions. Dr. Cho’s license to prescribe drugs was suspended, although it was soon restored, and he moved from El Paso to a hospital in Fort Worth. He did not return a call to his office, and his lawyer declined to comment.

But at least we have more doctors--that means more people have access to medical treatment, right?

Texas Watch also contends that many poor rural areas of Texas remain underserved, and rural West Texas has actually lost several physicians since 2003.

Tort "reform" may be thought of as harsh on some plaintiffs, but at least it is serving its purpose...it's fixing the malpractice insurance crisis by lowering insurance rates and bringing in doctors, isn't it?

Texas Watch, in a report last February, questioned the decline in malpractice insurance rates, saying they must be seen in light of increases of as much as 147 percent before the 2003 referendum. And Bernard S. Black, a law professor at the University of Texas, has published studies showing little increase in Texas insurance awards from 1990 to 2002, casting doubt, he said, on the “malpractice insurance crisis.”

Professor Black also said that data was too scant to attribute the rise in the number of doctors to the damage caps. “I don’t doubt there’s an effect,” he said, “but I think it’s a small one.”

Damage caps may be strong, but that doesn't mean they are unreasonable, does it? I mean, sometimes we need tough laws.

Paula Sweeney, a leading Dallas liability lawyer and a past president of the Texas Trial Lawyers Association, said, “A lot of legislators are aware they went too far in ’03.”

Read the full article here.

Also on TortDeform, cross-posted from New York Personal Injury Law Blog, is Eric Turkewitz' confrontation of the numbers cited in the Times article about disciplinary actions against Texas docs for med mal. He writes:

The New York Times reports today on the huge increase in doctors flooding into the Texas since medical malpractice damages were severely capped in 2003. Want to know what else has gone up? Patient complaints and actions against doctors by the Texas Medical Board.
The article quotes an official as saying that disciplinary actions have risen only 8 percent. But is that really true? Not when I look at the numbers.

Here's the quote buried on page 2:

Since 2003, investigations of doctors have gone up 40 percent, patient complaints have gone up 25 percent, and disciplinary actions about 8 percent, said Jill Wiggins, a board spokeswoman.

Maybe that official isn't looking at these statistics. Nor, apparently was the New York Times.

Total Disciplinary Actions:
2002: 187
2003: 277
2004: 256
2005: 304
2006: 335

If you measure from 2002, the last full year before the caps were imposed, then disciplinary actions rose 79%. If one is going to do a "before" and "after" comparison that seems the likely year to use.

If, on the other hand, you are trying to spin the New York Times to claim only a minimal change, then you ignore the rapid increase over four years and minimize the damage by only discussing the change from 2005 to 2006.

By the way, 2007 isn't shaping up much better, with 88 doctors disciplined at the Medical Board's August meeting, 30 in June, 34 in April, and 41 in February. That's 193 so far, with two more meetings to go, on a pace to well exceed the 2002 numbers.

So Texas is clearly getting more doctors. They just might not be the ones you want.

(Eric Turkewitz is a personal injury attorney in New York)