Opinion: Why Tort Reform Won't Solve the Healthcare Cost Crisis

Tuesday, July 10, 2012 - 01:44 PM

An alternative to the Affordable Care Act that gets brought up consistently is tort reform, which the packaging and branding geniuses at the GOP are now calling “lawsuit abuse reform.” One of their foundational beliefs is that the reason health care costs are so high is because they think that your average doctor can’t walk out to his mailbox without getting sued for millions of dollars.

Their solution to this dilemma is to place limitations on how much victims of medical malpractice can receive in compensation. These are the so-called “damage caps” that you might have heard of. One of the reasons that these caps are so popular with the general public is because they put a limit on the amount of money people can receive for non-economic damages.

Non-economic damages have a lot of other names, and almost all of them are designed to make us angry. “Pain and suffering” is one. “Emotional distress” is another. Non-economic damages have been very easy to limit via state ballot initiatives, mainly because when Americans hear about somebody winning a lawsuit and receiving money for “pain and suffering” we immediately think “Suck it up, walk it off, and quit being such a baby.”

The theory behind caps is that if you limit the amount of money that doctors (and by extension their malpractice insurance companies) have to pay out if they lose a medical malpractice case, then all of these wonderful, cost-shredding dominos will start to fall. The doctors won’t have to shell out so much money for their malpractice premiums, and they won’t have to give up their medical practices and evacuate their respective states, and they won’t have to run an MRI and thirty X-rays over a sprained ankle to protect themselves, and they won’t have to charge their patients so much for health care, and the prices will go down, and everything will be right with the world.

It’s a terrific plan, except for the fact that it’s a terrible plan. If you want to see how these sorts of things work out for everybody, you should take a look at Texas, which is the state with the hardest restrictions on medical malpractice lawsuits in the country.

In 2003, Governor Rick Perry signed a hard cap of $250,000 for non-economic damages into law. None of the promised miracles of this law have really panned out.

One of the more optimistic predictions was that doctors would simply stampede to Texas in order to set up practice thanks to Governor Perry’s legal protections. But the latest info from the American Association of Medical Colleges has Texas ranking 42nd in the country in doctors per 100,000 people. If Texas is such a safe haven for doctors, then surely they can do better than that - 202 doctors per 100,000 people is a significantly lower ratio of practicing physicians than Rhode Island (ranked 4th), Vermont (ranked 6th), Connecticut (ranked 5th), and New Hampshire (ranked 11th) Each of these states have much lower populations and, interestingly enough, no limits whatsoever on non-economic damages in medical malpractice cases.

Also torpedoed by the facts is the notion that tort reform causes health insurance premiums to drop. Between 2003 and 2010 the average price of a health insurance premium for an individual in Texas went up 46 percent, and the average price of a family health insurance plan in Texas went up 52 percent. As if that wasn’t enough of a sign that tort reform hasn’t helped make health care cheaper, Texas had one of the highest rates of uninsured people in the country in 2010. Thirty three percent of Texans between the ages of 19 and 64 had no health insurance, and 17 percent of Texans between the ages of just-got-here to 18 weren’t covered either. Dallas, 33.1 percent, no coverage. Houston, 30 percent, nothing. San Antonio, 22.4 percent, nada. Seven years of caps on non-economic damages had no positive effect on either the costs of health insurance or the number of people who could afford it.

Since doctors in Texas are now free from expensive medical malpractice suits, it would stand to reason that they no longer have to practice what is called “defensive medicine,” which is the running of unnecessary and expensive tests for no valid medical reason other than fear of a lawsuit.

Yet in McAllen, Texas, Medicare costs per person are actually higher than the median income of the people who live there. While doctors might no longer fear lawsuits, it seems they are also not at all afraid of sending big, fat, test-laden invoices to Uncle Sam or insurance companies. It doesn’t seem to be “defensive medicine” as much as it is an amendment to the Hippocratic Oath: “First, do no harm. Second, daddy needs a new pair of shoes.”

It is absolutely true that medical malpractice cases have dropped drastically in Texas, but doctors and surgeons are making just as many mistakes as they always have. It’s just that now most of the victims have been priced out of the courtroom. Just as it costs money to defend a medical malpractice case, it costs money to be a plaintiff in one. Due diligence, depositions, and the hiring of expert witnesses is an expensive business. It costs money that I don’t have, and neither do you.

A guy working at Outback Steakhouse who gets injured due to a preventable mistake by a doctor can’t afford to pay the hourly rate of your average law firm. This is why the vast majority of medical malpractice attorneys work on a contingency basis. They front the costs of the trial with the agreement that if your case is successful, they will reimburse their expenses and take a percentage of what you are awarded.

If the case in unsuccessful, the attorney gets nothing and has lost the money that he spent getting your case through court. The idea that any sane attorney would gamble willy-nilly with his own money to pursue a frivolous lawsuit is absurd. You will never hear a plaintiff’s attorney who works on a contingency basis say “Sure, why not? Let’s just throw it out there and see what happens.”

As much as we make fun of the idea of “emotional distress,” those non-economic damages are how the middle and lower classes are able to pay for legal representation. With damage caps in place, all the medical malpractice insurance companies have to do is get the plaintiff’s attorneys to spend more litigating the case than they can possibly win, which is remarkably easy to do when the cap is as low as it is in Texas.

You hire two expert witnesses, they hire five. You schedule three depositions, they schedule ten, and so on and so on. The end result is that your attorney will end up losing money even if he wins the case, so most medical malpractice cases in Texas are dead before they start.

This is not to say that there are no medical malpractice cases in Texas. There are a few, usually with cases involving victims who were earning a significant amount of money before the doctor or surgeon made his mistake. If the Texas Rangers’ pitching phenom Yu Darvish got accidentally blinded during laser eye surgery, the economic damages alone would guarantee an avalanche of medical malpractice attorneys offering their services. But if the same thing happens to a woman who teaches at an elementary school, nobody is taking her case. The economic damages for a mere teacher probably wouldn’t cover the restrictions of the caps.

So aside from not delivering any of the cost slashing benefits that were promised, tort reform in the Lone Star State has given its citizens a new state motto. “Texas: If you aren’t worth something, then you aren’t worth anything.”


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Comments [20]


I don't really have a position on this topic, but am writing a memo about it for a public health course. Yes, the Texas ranks 42nd in physician per 100,000 people; before tort reform, however, it was ranked 48th, which I think is something to consider in the argument.

Jul. 07 2013 01:42 AM

The main driver for American health care costs IS NOT malpractice. I don't know what the single biggest driver is but I do know that our costs are 30-50% HIGHER than any other developed nation (17% versus 10.5-14%). If this is the cost of having a 'for profit' medical system, perhaps we had better take a second look at a truly socialist solution. Anyone for starting the United States Medical Corps modeled after other branches of the service - academies, training corp, stipends to many so they can avoid big college tuition debt - in exchange for so many years of service providing basic health care services?
I beliefe that there is room in our market for a floor of services you cannot fall below and a sky's the limit private insurance system but we can't have sky's the limit for everyone. Nor should we.

Oct. 21 2012 03:51 PM

Part guys need to change your character limit. I'm finished.

I’ll end this on these thoughts… At the end of my training (I’m not finished) I will have spent 16 years in higher education before I am out on my own. 16 years! That’s a career for some; I’ve barely started mine. The fewest someone can spend to be a doctor is 11 (4 college, 4 med school, 3 in residency). My dad estimates that he has provided about 1.5million dollars in free medical care because either people can’t pay or insurance companies won’t pay. There is actually little recourse against this if you don’t want to waste a bunch of time or pay an attorney. That 1.5 does not include all the non-billable time thinking about people and talking with them. Can you imagine a car shop saying that, or an electrician, or any skilled worker? There is a cost for service, there is a bill and someone pays the bill. You’d be hard-pressed to find more educated or more devoted people. No doctor wants to bankrupt patients; we’re not mercenaries. And we want patients to have recourse when the claim is legitimate. We have unique skills, impressive overhead, and entrance into the field is a huge commitment. We are not allowed to unionize or bargain collectively for rates. Tort reform is a recourse that we have. I’d make the argument that we’re underpaid for our expertise but it appears someone already has for me.

Jul. 20 2012 10:11 AM

Part III

I think an ancillary conversation regarding medical mal insurance and negligence is that very few doctors are negligent. It’s angering to have to cover yourself against your patients. They know that I cut people open for a living. Not often, but miserably, bad outcomes happen; mistakes happen. The doctors who lose med mal cases aren’t negligent. You’ll never here a doctor say, “that wouldn’t have happened if I was there.” A doctor will say, “I’ve had that scenario, that could’ve happened to me.” People are not planes on a flight plan. We are the most complex structures ever created. I have sleepless nights about patients and surgeries. Most physicians do! Patients have my email, my cell phone number, my personal office number. My dad is an OB/GYN. As a child I remembering answering all sorts of calls when patients called to speak with my dad. We don’t get “billable hours” like attorneys. We do it because it’s the right thing to do. Physicians do a better job of policing themselves than many professional fields. Those numbers actually showed up on “Waiting for Superman.” We do much better at removing dangerous doctors from medicine than attorneys do from law or teachers do from education.

Regarding medical bills, if you are insured and if you stay in-network, then almost no one can do what’s called balanced billing. For any planned care, talk with your insurance company and stay in network. The problems with insurance companies is a whole other conversation.

Jul. 20 2012 10:08 AM

Part II

You ask a question on increased costs. A topic on which books have been written so I will answer with just a few thoughts and examples. I think one reason that costs have increased is that we do more for (or to—depending on your level of sinicism) patients than we used to because we have more to offer (each with relative benefits and risks). Coupled with that is that patients present to us for many more things now than many years prior. If a 50 year-old woman gets heart burn and she thinks it’s abnormal, then perhaps she’ll look it up online. She’ll see that it is an atypical presentation of a heart attack. That is often enough to send someone to the ER. She will then get a battery of tests because (1) the ER doctor needs to rule out what can kill her before ever sending her home, (2) nobody wants to miss a heart attack, a very distant thought is coverage against negligence, and (4) she will need follow up with her primary care doctor or a cardiologist. At the root, all of the tests will be offered to ensure good care for the concerned woman. If she does not want some of the tests or any of the doctors she sees are dismissive of her heart burn and she has a heart attack in 1 year, then she may come after the doctor. 20 years ago this fictional woman was much less likely even to see a doctor about heart burn. Think about erectile dysfunction. ED is most commonly a symptom of a larger problem (e.g. lifestyle diseases like type II diabetes, peripheral vascular disease, heart disease, smoking, psychological) and not a disease on its own. Nobody saw their doctor for ED in 1980, but they do now. There are millions of examples. We have a lot we can do to take care of people. That creates just as many incidental findings, which often lead to another work-up. Disease is lurking everywhere, and I need to take care of the person sitting in front of me. I love discussing the relative worth of work-ups/treatment courses/surgeries with patients. A well-informed patient is crucial. My experience is that overwhelmingly patients want full work-ups, treatments, and they wanted them to start yesterday…this is really such a bigger conversation and Dr. Gwande’s article you reference is an interesting one.

Jul. 20 2012 10:07 AM

Hey Adam,
Thanks for the response and your time; interesting numbers on Texas and Maine.

My point in my last post was to demonstrate that your article had some gaps. Had they been addressed, I think it would strengthen your position. Two other points perhaps worth mentioning: is there any evidence to support that Texas is a surrogate for the nation? That is, would the other 49 states see similar trends if all enacted Tort reform? My intuition would say yes, but there was no direct support (please don’t waste your time finding that answer). Also, what about the percentage/number of med mal cases which are settled and never go to trial? I’m sure that has an effect of the cost of medical malpractice insurance.

You also posed some questions to me so I will try to answer them as well.
Overall, I agree with your contention that tort reform will not reduce the cost of health care in this country. At the core, tort reform is probably a little more symbolic or a larger issue (more on that later). However, there are a couple aspects of tort reform that I think may reduce the cost of liability insurance without hindering the plaintiff. (1) There should be a time-limit on cases once filed, perhaps 2 years to reach conclusion. This would reduce lawyer fees. And (2) the loser pays all court-associated fees. I’d also argue that ‘a jury of my peers’ should be made up only of people who have graduate degrees or at least college degrees.
Regarding the 7th Amendment, the Supreme Court has refused to hold that the 7th Amendment is applicable to civil trials in state courts; so that’s not at stake here. Policing power belongs to the states as was intended by the constitution and explained in the federalist papers. Removal of the ‘pain and suffering’ cap does not make the federal government in charge of policing power. What it does is make attorneys more interested in the monetary potential of the case as opposed to spending their time in a different direction. A genuinely negligent action will still be settled or tried.

Jul. 20 2012 10:03 AM
Lindsey from Washington, DC

Continued from previous comment.

The life of a doctor (especially a surgeon) is harder than any patient will ever know. While my husband was in residency-after 4 years of medical school and a load of debt-he made $12 an hour for 6 years. He made that rate until he was 35 years old. How many other professions do you know of that require someone to work 100 hours a week and get paid so little after 8 years of schooling? Once he was out of residency his pay did increase, but so did our loan payments for medical school, and of course our huge malpractice costs.

We've made it so hard to be a doctor in this country by deciding that they should BE God, and solve all of the health problems we have (most of which are self-inflicted) that you have to be practically insane to become a doctor now. We've created an environment where our best and brightest have no reason to spend so many years in school, accrue so much debt, and then make next to nothing. Instead, our brightest become engineers, bankers, etc., while the medical schools have no real choice but to accept the best applicants they get... the B and C students a lot of the time now. Is this really how we want to treat our doctors? The idea that they get paid too much, and get off too easily is bogus. They're under paid and over worked, and most of us couldn't find the energy and will-power to do the jobs they do. As a point, my husband drives a 2002 Honda Civic... think daddy really needs a new pair of shoes? How about a new car with an A/C that works!

I do believe in tort reform, and I also believe that if someone really is hurt due to a doctors negligence they should have the right to retribution. They don't however have the right to attempt to sue their doctor for anything other than negligence. As for "pain and suffering"...pain is 100% relative. It's hard enough for doctors to try to assign numbers to pain for patients, how exactly do you think you can provide a specific $ amount to what one person thinks they should or shouldn't have to bear? With high rates of pain med addictions in this country, doctors have to spend far more than than they should trying to manage pain, while ensuring their patients aren't either becoming addicted, or trying to fool them to feed an addiction. A cap on retribution for pain and suffering makes perfect sense.

Instead of blaming our doctors for the high cost of healthcare - very little of which ends up in their pockets as take home pay - patients time would be better spent learning how to take personal responsibility for their well-being. If we all did a better job of taking care of ourselves, we'd see our doctors less often, have fewer surgeries, medications, and "pain and suffering" over the course of a lifetime, and our healthcare costs would in fact go down drastically.

So here's to not blaming doctors for the fact that tonight 25% of our country decided to eat fast food for dinner.

Jul. 19 2012 07:47 PM
Lindsey from Washington, DC

Although your argument may have some validity to it, by using Texas as your primary source of information and leaving out one of the single largest contributors to the cost of healthcare in Texas renders it mostly invalid. Also, per a previous comment, although the illegal immigrant population is a problem, they don't tend to flock to hospitals unless they really need to due to the fact that they're uninsured, and illegally living in this country. The real reason Texas's healthcare costs have skyrocketed over the last decade is their obesity rate. In the last 15 years Texas's obesity rate rose 80%. Over 30% of their population (a very large majority of which are the poor people you speak of) is obese. With this obesity comes a whole slew of healthcare issues that do in fact increase costs exorbitantly. In 2009 Texas's businesses spent approximately $4 BILLION on obesity related health insurance claims for their employees. They also spent an additional $5.4 Billion on absenteeism, lost work time, etc. They're estimating that number will be $32 Billion by 2030.

The reason healthcare costs so much in Texas isn't because they have more strict malpractice laws. It's because they have extremely unhealthy citizens who continue to make poor choices.

I'm married to a surgeon and I can tell you that even if they amended the malpractice laws in Texas to make it virtually impossible to ever sue a doctor for anything, we still wouldn't move there. Doctors are still normal humans with wives, children, and lives that are not shaped by the possibility of law suits. We live where we want because places have good schools, or an array of activities that we enjoy. Like any other career, they way our options after residency to decide the place that will fit them and their families the best, but I can tell you malpractice laws are VERY low on the list of drivers.

Continued on next comment posting...

Jul. 19 2012 07:38 PM
Adam Dawson from Washington, DC

You make some good points, so I will do my best to address them. First, in 2000 (three years before the cap on non-economic damages was put into place), the number of doctors in Texas per 100,000 people was 156.2, which was 49th in the country. They are now 42nd, which is great, except for the fact that they still lag way way WAY behind the rest of the country in the number of doctors practicing. I’m thinking strictly in terms of the supposed benefits of tort reform here, and to me that marginal increase is not worth the gutting of the 7th Amendment rights of every non-wealthy person in Texas.

With regards to illegal aliens I bet that adds to the cost. But let’s take a look at a state like Maine, which according to the Federation for American Immigration Reform had an estimated 5,000 illegal aliens in 2010. Despite not being burdened with the costs of illegal immigration the way Texas is, between 2003 and 2010, Maine had a 73% cost increase in single insurance premiums and a 55% cost increase in family premiums. 5,000 illegal aliens, and the price goes up that much? What happens in Maine? Maine also has a $500,000 cap on damages, so, again, tort reform doesn’t seem to do much in terms of stopping health care costs from going up and up and up.

I absolutely do know what DRG’s are. They are the series of diagnostic codes and categories that doctors have to place people and their illnesses in so the insurance companies will know what “products” (interesting word) patients have received. I know this because it matters just as much to me as it does to you whether or not my insurance company will choose to pay for my treatment. In fact, I would argue that it matters more to me than it does to doctors and hospitals. It’s not like you guys simply eat the cost when the insurance company says “Nope. Sorry. Not our problem.” You pass those unpaid bills on to us, or at the very least you sell the debt to a collections agency and at least make something off of that. I don’t have that option. I have to either find a way to pay or declare bankruptcy. And if I am wrong about there being more unnecessary testing despite tort reform protections, then where are all of these increased costs coming from? Not just in Texas with all of its illegal aliens and tort reform protections but everywhere, literally everywhere? Does every patient come in and demand MRI’s and extensive lab tests and consultations with specialists? You guys are in charge of choosing the treatment, not the patients. I haven’t taken the Hippocratic oath. I’m sure being a doctor is a pressure filled job. I am also not an air traffic controller. The difference is, if my mom gets on a plane and an ATC makes a stupid mistake and gets her killed, I can take my case to court. If my mom is in a Texas hospital and the doctor or surgeon does something stupid, well, that’s that, unless she happens to be worth a lot of money.

Jul. 18 2012 12:48 PM

I am a physician; I have some thoughts for you to ponder. Well done on writing an opinion and making an argument with facts and a few citations, thank you. The difficulty of examining an aspect of health care (e.g Tort reform) and discussing its merits for reform as it applies to the whole is that health care is too large and too complex to do so. You have to delve into drivers of each number and at least mention them. But you’re not alone, Gov Perry’s argument was shortsighted as well.

Gov Perry thought more doctors would want to move to Texas; I don’t want to move there simply based on tort reform or malpractice costs (anecdotal). You spend a paragraph on the prevalence of doctors per state, but what was the rate of change of doctors per state over those years? Did Texas lose physicians compared to other states from 2003 and on? That would be a stronger position (if the numbers go in your favor; if not then you used inappropriate numbers to support your incorrect position). It’s the difference between velocity and acceleration.

The next paragraph you discuss cost of insurance without mention of statewide treatment of illegal immigrants. Un-insured illegal immigrants affect the cost of medical care (they increase it). A portion of this cost is passed on to the insured. Texas had a lot of illegal immigrants between 2003 and 2010. How does that impact family health insurance plans or Medicaid/Medicare cost? I’m pretty sure it increases them. How about other drivers of cost for individual health care plans? If you said that in Texas 90% of a person’s insurance premium was driven only by the state-wide sum of doctors’ orders and treatments divided by the number of people in the state, then you’d have a strong position. But you didn’t say that, and I doubt that it’s true.

Have you ever heard of a Diagnosis-Related Group (DRG)? You should google that before you ever write the comment “big, fat, test-laden invoices to Uncle Sam or insurance companies” again. Your comment shows a lack of understanding for how doctors bill, code, receive reimbursement, and for what we receive reimbursement. That is, what a doctor may charge, is not what a doctor will be paid.

Don’t ever disgrace the Hippocratic Oath again. You haven’t taken it. I doubt you know the unbelievable pressure of being entrusted with someone’s life when things aren’t going well. You were reckless, self-serving, and comments like that will make you much less likely to sway opinions of people who disagree with you.

There are a lot of problems with health care. There are a lot of good things and successes. I don’t think the national conversation has on health care has been an intelligent one. Do better.

Jul. 17 2012 02:28 PM
Adam Dawson from Washington, DC

I would take issue with the idea the med mal cases are either profitable or easy. In the first place, they simply don't happen nearly as much as medical malpractice insurance companies would have you believe. In 2008, Rhode Island had 100. Minnesota had 37. Connecticut had 272.

Also, the idea that medical malpractice cases are easy-to-win bonanzas is nonsense. In 2005, the win rate for plaintiffs in Medical Malpractice jury trials was 23%. Which means that you had just over a 1 in 5 chance of winning. Median payout? $400,000, not tens of millions. If you have friends who are plaintiffs attorneys, then they can tell you that they don't take cases unless they think they have a good shot at winning, because they are fronting their own money to get the case through court. So even when they think they have a good shot, they still only win about 1 out of 5 cases.

And if there is some sort of hidden Trial Lawyer lobby pulling the strings to keep things in their favor, they must be doing a terrible terrible job. Caps on non-economics damages exist in more states than Texas, and as I mentioned in the article, these caps make it harder and harder for poor and middle class people to get to court in the first place.

Nobody is saying being a doctor isn't a hard job. But caps effectively give them complete professional immunity, which I don't think is the best thing to give to someone who is responsible for your medical care. Not to mention that if a doctor commits a preventable error (which happens, you know,) and the person he hurt is seriously injured and cant get to court due to the caps, guess who gets to take care of him financially? I do! And so do you! And so does everybody else we know. It's called Social Security Disability Insurance, and Medicare, and Medicaid, and all the rest of it.

Jul. 16 2012 11:37 AM
anonymous from New York

People keep framing tort reform in terms of its effect on cost, but from my standpoint, that's the wrong angle. To me, tort reform should be thought of from the perspective of physician supply and quality of care. In certain parts of the country, in certain fields, medical malpractice is so ubiquitous that it has become an untenable stressor on physicians and causes physicians not only to retire early and limit their practices, but to stop practicing altogether. The unfortunate reality is that bad things sometimes happen, usually despite the best efforts of everyone involved, and our system often does a very poor job of providing for those in need. The trauma of caring for a patient who experiences an unpreventable tragic outcome is monumental in and of itself, the trauma of then being held personally and professionally responsible for something that you were powerless to stop, and being forced to relive a horrible experience over and over again, with your ass on the line, for years or even decades, is indescribable. Why would anyone want to practice medicine anymore? It's hard enough without the stress and pain of malpractice lawsuits, which, by the way, take a not-inconsequential amount of time and energy away from the practice of medicine even for those physicians who remain willing to put up the torture.

As for politics and tort reform, remember that many or even most politicians have attended law school. Many were or are trial lawyers themselves (check out the NYS legislature if you need to see this in concrete terms). Even those who weren't have friends who are trial lawyers, and donors who are trial lawyers There's a lot of money for lawyers in medical malpractice, and they like the system just the way it is. Lawyers have been much more successful in controlling the political process than doctors have. I'm not saying that lawyers and politicians are all bad, but their perspectives need to be taken with a grain of salt, and may have little to do with the facts of the situation.

Jul. 16 2012 09:53 AM
Rudy Gonzales from Friendswood, Texas

Tort Reform has not panned out as boasted for Texas and other states which have passed Tort Reform. Insurance premiums have not been reduced which is backed and sanctioned by this statement: Insurance companies, like every other business, is in business to make money. The insurance companies are the one covered with small print full of exceptions, limitations and other liability curbs protecting the insurance companies themselves. Speaking of Texas, where tort reform was trumpeted as "Good for Business" by Texas' own "Streaking Texas Turkey", Rick Perry, doctors themselves are disgusted with the turn of events as their premiums have not gone down but actually increased, providing additional profits for the insurance companies. The 'damage caps" provided to insurance companies have benefited insurance companies in front with increased premiums and at the end with less liability to plaintiffs. The only ones benefiting from limiting "Pain and Suffering" or "Emotional Distress" with these "Damage caps" are the insurance companies who are a legal form of a casino. The political powers in Austin are and have been in the pockets of the insurance industry and have come out smelling like a rose. The other side of the coin is doctors have been programmed and prone to practice defensive medicine and as such order an abundance of exams to protect their practices. Texas reached this precipice quickly as there have been no Democrats to bring discussion and compromise to the table. Texas got to this because of the local level of political involvement and implementation of business improvement programs, and it's at the local level where real power and decisions are made and implemented. Federal grants for Medicaid, to help those most needy, is limited and excess money moved to other programs advantageous to those in office at the local level.

Jul. 14 2012 02:35 PM
Adam Dawson from Washington, DC

Thanks, Nick. Appreciate it.

Jul. 11 2012 03:58 PM
Nick from NJ

Adam, you are right on point here. This is a great conversation, but I find it funny that no politician gets behind this, even Obama.

I think for your next post you should look into how the insurance companies wrap their tentacles around local state governments. You can start in NJ, with a gentleman named Norcross.

Jul. 11 2012 03:44 PM
Adam Dawson from Washington, DC

@jvm, So what you are saying is that the reason prices haven't gone down is because of the TMLT, which is preventing malpractice insurance rates from going even lower? Are they an actual government-run body? Do they have the power to also prevent Advocate, Medicus and Capson to sell their insurance for lower premiums? Since anybody who doesn't already have money will be unable to file a medical malpractice lawsuit, I imagine that the rates are as low as they are going to get, quasi-government agency or not. I mean, if you are a doctor, you can't get a better liability situation than nobody being able to afford to go to court.

Jul. 11 2012 01:30 PM
essiac from

really very good..

Jul. 11 2012 01:29 PM
JVM from Austin, TX

The situation in Texas is enigmatic.

Ironically, everyone predicted that free market economics would drive down the cost of malpractice insurance, and the medicine in general.

Malpractice insurance premiums have come down. New Malpractice carriers (Advocate, Medicus, and Capson) have popped up. The states high risk Joint Underwriting Association (JUA) has virtually been depopulated.

The problem is that a the vast majority of the market is insurance by a quasi-govermental not commercial insurance entity : The Texas Medical Liability Trust. The Trust was formed 20 or so years ago by a special act of the the legislature, and it is not restricted by the rues of commercal commerce. The legislature allowed it durring at time of crisis , when you could not buy malpractice insurance at any price in the state. Now it has outlived its usefulness and it is populate by employees who are long termes. So, TMLT has had to keep its rates higher then they should be. The result is the savings are simply not there in the state.

The orignal argument of reduce costs may or may not hold true. But the Texas example is not on good statistical grounds to solve the argument eather way.

Jul. 11 2012 12:29 PM
Adam Dawson from Washington, DC

@dcoymd, the word "fair" is absolutely the point, here. How fair is it that the 7th Amendment rights of almost every citizen in Texas have been effectively taken away?

I would almost sympathize with your argument about fairness if tort reform had actually delivered on all of it's promises, but after nine years, the only people who have benefited have been the medical malpractice insurance companies and doctors. Nobody else has received anything positive, not in cost reduction and not in quality of treatment.

These caps give doctors, surgeons and hospitals immunity from any professional responsibility whatsoever. Policemen don't get that. Firemen don't get that. Air traffic controllers don't get that. The guy who runs the 7-11 down the street doesn't get that. I don't get that. Even the lawyers who litigate medical malpractice cases don't get that. Every citizen in Texas is responsible for their professional actions except doctors. If we're talking about unfairness, having one segment of the community placed above the law is a pretty solid example.

The way the system is set up in Texas, a doctor who drinks a fifth of gin and plows into a family minivan would face prosecution and probably a civil suit as well. If that same doctor drinks a fifth of gin and wanders into his practice and hurts somebody, he'll be completely ok, provided that the patient he hurt wasn't rich. Is that fair? I don't think so.

Doctors in Texas don't have to risk their life saving with every patient anymore, yet with our health care system being the way it is, those patients have to risk their life savings and a heck of a lot more with every trip to the doctor. Doctors might indeed die a little with every case, but patients might actually really die.

Jul. 11 2012 07:17 AM

Here's a new twist... With 30-50 million newly insured a shortage of 167,000 physicians is predicted. There are currently 800,000 doctors in the U.S. many of them my age of 53 and over. With every patient we risk our life savings. Not fair. Most of us won't practice past 62 or so because we can't risk losing all we have saved. Frankly U.S. healthcare need us to practice longer or there won't be enough docs. Nobody is perfect. In the current system based on blame a doctor dies a little with every case.

Jul. 10 2012 11:46 PM

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