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Physicians win award cap as Texas passes tort reform

Doctors are still lobbying the Senate to take action at the federal level.

By Tanya Albert, amednews staff. June 23, 2003.

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Texas has joined a growing number of states beefing up tort reform. Earlier this month, lawmakers in the state adopted the $250,000 cap on noneconomic damage awards in medical malpractice lawsuits that physicians have been pushing for locally and nationally.

This cap on what are commonly known as pain and suffering awards will apply per event. For example, if a patient and the patient's wife or parents sue a physician or several physicians in connection with a medical malpractice incident, they could still only receive a total of $250,000 in noneconomic damages between them.

"It is really meaningful tort reform, and we believe it will have a beneficial effect," said Spencer Berthelsen, MD, who practices internal medicine in Houston and is the chair of the Texas Medical Assn.'s Council on Legislation.

Texas courts have found caps unconstitutional in the past, so companion legislation will ask Texas voters on Sept. 13 to approve a constitutional change that would make the award limit legal. In addition to the caps, the legislation will tighten expert witness requirements and allow physicians to pay medical expense damages over time instead of in one lump sum.

"It's a major victory," said Linda Villarreal, MD, an Edinburg, Texas, internist.

At press time, Gov. Rick Perry was set to sign the bill. The law would go into effect Sept. 1.

Texas is one of 18 states the American Medical Association says is experiencing a medical liability crisis, with physicians leaving the state, retiring early or discontinuing high-risk services because they can't find or can't afford professional liability insurance.

Doctors believe that a noneconomic damages cap, combined with other reforms, will help keep rates more stable and help ensure that companies will continue to write insurance policies for physicians. They say the system has worked in California, where a similar law has been in place for more than 25 years.

But trial lawyers and patients' advocates disagree with the notion that noneconomic damage caps are the answer to physicians' insurance woes. Instead, they say, states need better insurance regulations, and medicine needs to better address physician errors that lead to malpractice lawsuits.

"What is frustrating is that Texas patients are going to be paying the price, literally and figuratively, and we have done nothing to solve the crisis," said Dan Lambe, executive director of Texas Watch, a consumer research and advocacy group.

Lambe said the legislation would hurt senior citizens, stay-at-home mothers, children and others who are not wage earners.

"It's a devastating piece of legislation," he said. "Texas doctors had the wool pulled over their eyes this legislative session as they were led to believe this cap was going to be the end-all and be-all."

Federal and state action

Physician efforts are ongoing to try to get legislation passed at the federal level.

The House approved a bill earlier this year that would cap noneconomic damages at $250,000, hold physicians responsible only for their portion of the damages and set a three-year statute of limitations to file most lawsuits.

States that already have tort reform could choose to abide by their state laws under this federal bill.

But the Senate hasn't moved any legislation yet. Lobbyists for physician groups are meeting with senators to discuss the issues and to press for a vote.

In March, Sen. John Ensign (R, Nev.) introduced tort reform legislation with five Republican co-sponsors. It has similar provisions and the same title as its House counterpart, the Help Efficient, Accessible, Low-cost, Timely Health Care Act of 2003.

Earlier this year, some Senate Democrats and Republicans were working on a compromise bill, but at press time no bipartisan legislation had been introduced.

A window could open up in July for Senate action, said AMA President-elect Donald J. Palmisano, MD. He urged physicians to contact their senators and ask them to support tort reform similar to California's law.

"Our plea to doctors is to get involved," Dr. Palmisano said. "Something will happen at the federal level. The only question is whether it happens now or later. That depends on what we -- physicians -- do."

Meanwhile, tort reform has been moving on the state level. In the spring, West Virginia and Idaho reduced existing noneconomic damage caps to $250,000. Here's what was happening in other states at press time:

• In Florida, the Legislature was set to discuss tort reform in a special session after failing to pass legislation in its regular session. Lawmakers were expected to consider a bill based on Gov. Jeb Bush's medical liability task force report findings, including a $250,000 cap on noneconomic damages per incident.
• In Nevada, the Legislature has passed some reforms, including court authority to sanction lawyers who file frivolous lawsuits, but failed to adopt a $250,000 cap on noneconomic damages. Voters will consider the cap as a ballot question in November 2004.
• In Pennsylvania, the Legislature was expected to consider a series of proposals, including a bill that would initiate the constitutional change needed to allow caps on noneconomic damage awards and a measure that would address attorney fees.
• In Oregon, the Senate Judiciary Committee was set to consider a bill that would require disclosure of expert witness names, addresses, qualifications and a list of prior cases in which they've testified.
• In Connecticut, the Legislature ended its session without passing tort reform. A special session could be called to address budget issues. If so, the Connecticut State Medical Society plans on trying to get tort reform addressed, too.

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