Statesman.com
It shouldn't have surprised anyone that a new study found that tort reform didn't lower health care costs in Texas, at least health care costs associated with Medicare. To a large degree, tort reform is an article of political faith empirically averse to contrary facts.
As the American-Statesman's Mary Ann Roser reported this week, a study by University of Texas law professor Charles Silver and colleagues from Northwestern University and the University of Illinois looked at Medicare spending in Texas between 2002 and 2009 and found no evidence that capping medical malpractice payouts led to lower health care costs.
In 2003, Texas voters narrowly amended the state Constitution — 51.1 percent to 48.9 percent — to limit payouts in medical malpractice lawsuits. The vote was held on a Saturday in mid-September rather than the usual Tuesday in November because tort reform's supporters wanted to guarantee a low turnout. It was a shameful but smart political move: Low turnout favored tort reform's passage.
Proposition 12, as the proposed amendment was known, put a $750,000 total cap on the noneconomic damages, such as pain and suffering, a jury can award a victim of medical negligence: $250,000 maximum from a doctor and $500,000 from a hospital or other medical institution. It did not limit actual damages — payments to cover lost wages, medical bills, disability and so on.
We tepidly supported the proposition. After all, voters were being asked to limit their rights should they fall victim to medical error. Still, reservations noted, we crossed our fingers in the hopes the amendment would reduce medical malpractice insurance premiums.
Supporters of the amendment claimed that limiting jury awards in medical malpractice lawsuits would reduce the number of suits, cut the cost of medical malpractice insurance for doctors, increase the number of doctors practicing in Texas and lower costs for patients.
The number of malpractice suits and payouts did decrease — with a $750,000 cap making litigation cost-prohibitive, how could it not? Supporters also say tort reform helped bring more doctors to Texas.
Jon Opelt, executive director of Texas Alliance for Patient Access, told Roser that tort reform can be credited for bringing nearly 5,000 more doctors to Texas than can be accounted for by population growth. Another study by Silver's group, as yet unpublished, challenges those claims, Roser reported. The number of doctors who treat patients — Opelt's figure, Silver says, includes administrators, teachers and physicians who don't directly deal with patients — grew more slowly after tort reform than it did before.
Tort reform may have increased the number of doctors in two high-risk areas: obstetrics and emergency room medicine. The lack of obstetricians in South Texas, allegedly driven out by generous jury awards that caused astronomical insurance rates in that part of the state, was a major argument used to win tort reform, though the number of obstetricians in other parts of the state appeared unrelated to insurance rates.
Silver's study was limited to looking at Medicare spending. It's narrow time frame also only includes reform's first few years.
The study fails to surprise because in the years and months leading up to 2003's constitutional vote, there were numerous reports contradicting claims of an out-of-control civil justice system. A 2002 survey by the State Board of Medical Examiners, which licenses Texas' physicians, showed that malpractice claims in Texas had reached a four-year low.
A summer 2003 report by the General Accounting Office, the investigative arm of Congress, found claims that patients in other states were losing access to health care because high malpractice premiums were forcing doctors to leave their practices to be either exaggerated or outright false.
There were other reports showing that many malpractice claims resulted in no compensation paid, that malpractice litigation wasn't a significant factor in overall health care costs, and that malpractice claims and awards had little to do with the rise in medical malpractice insurance rates. Supporters of tort reform never were inclined toward investigating the insurance industry to see what responsibility changes in the market bore for higher rates.
Supporters of tort reform often answered these studies with anecdotal evidence and appeals to "common sense." It was hard for critics of tort reform to counter an innate dislike of so-called trial lawyers, the politically charged semantics of "frivolous lawsuits" and the political exploitation of ridiculously high jury awards — though rare, such awards always drew widespread media attention and resonated with voters.
Silver told Roser he was "very pessimistic" policymakers will heed the study. His pessimism is justified. The Texas Legislature will not revisit tort reform anytime soon, and Gov. Rick Perry's office brushed off Silver's study by calling tort reform "a huge success."
The idea of national limits on malpractice damages percolates in Congress. If the issue rises above a simmer, don't expect Silver's study and others like it — past, present or future — to change the convictions of tort reformers one bit; if anything, such studies might just deepen them.
