Tag Archives: Texas

Legislative Challenges to Telemedicine

Telemedicine offers many opportunities to patients, physicians and the healthcare system, including greater access and the possibility of lowering costs. However, telemedicine is also subject to state laws and regulations, which can make it easier to use in some locations than in others. For example, though Texas has a large and underserved rural population, Texas regulators have recently mandated that patients and physicians have an initial face-to-face encounter and physical exam before allowing services to be provided using telemedicine. This new regulation will make it difficult for patients to access providers who may be too far away to allow for the initial physical exam.

Though Texas has made the telemedicine climate more challenging, other states are making it easier to access these services. In Part VI of our series, Physician Focus: Telemedicine, Healthcare Matters speaks with award-winning physician Jonathan Terry, an osteopathic physician and surgeon and psychiatrist who uses telemedicine extensively in his practice. Dr. Terry addresses the regulations in Texas, and also explains how telemedicine is a quickly-evolving area, with more than 200 laws passed in 2015 related to telemedicine. In contrast to the Texas regulations, many of the other laws passed with reference to telemedicine have been positive and allowed for more use of technology in healthcare. To learn more, watch Part VI of our video below. To watch the full interview with Dr. Terry, click here.


 

Study Questions Texas Medical Malpractice Tort Reforms

A new study of call into question the commonly held belief that Texas’s 2003 tort reform not only lowered medical malpractice insurance premiums, but also attracted an influx of doctors to serve the state’s more rural patients

The 2003 Texas tort reforms are legendary in medical malpractice insurance circles. At the heart of the reforms is a $250,000 cap on pain-and-suffering, non-economic damages. In cases with multiple defendants, the non-economic damage cap is $250,000 for all defendants total. The cap is also $250,000 for a defendant hospital.

The $250,000 cap on non-economic damages is similar to California’s Medical Injury Compensation Reform Act (MICRA), which has been the gold standard of medical liability tort reforms since 1975. Where Texas differs from almost every other state is that the cap on non-economic damages is enshrined in the state’s constitution.

When other states have passed non-economic damage cap legislation, medical malpractice insurance companies generally take a wait-and-see approach before lowering premiums. Texas medical malpractice insurance premiums, on the other hand, immediately began to shrink because the Texas Medical Society and pro-tort reform groups got the legislation into the constitution via a ballot initiative effort that passed with slightly more than half of voting Texans in support. The No. 1 medical malpractice insurance company in Texas cut its rates by 12 percent the year after the tort reforms passed, and—to date—malpractice insurance rates have fallen by 27.5 percent on average

Texas has taken great pride in its medical malpractice tort reform, and the government has touted how it has attracted doctors in droves top practice in the state. Some in the state government have said that the number of doctors applying to practice in the state has grown by 60 percent.

A new paper, titled “Does Tort Reform Affect Physician Supply? Evidence from Texas,” argues that the number of practicing doctors in Texas did not increase in the wake of the 2003 tort reforms. For more information on the study, please visit here.

Part 3: Texas agent sees future for third-party medical malpractice insurance companies

Editor’s note: Today’s blogpost is the third in a three-part series on how a successful medical malpractice insurance agent views the future of the market and the broker’s role within it. The article it originates from was initially published in the April 2012 issue of Medical Liability Monitor, the industry’s premier source for consistent, reliable coverage and fresh perspectives on medical professional liability insurance and risk management issues.

Looking forward, Couch believes the structure of healthcare reimbursement is going to dictate that physicians align themselves in an ACO fashion.

“Whether you are a physician or a hospital, if you are not participating in an integrated model, you simply will not have the patient flow needed to stay in business. The health insurance companies, Medicare, Medicaid are all going to contract with large integrated networks and bundle their payments for the defined population in your area. It will be a challenge for the independent, small hospital or independent practitioner not in some sort of direct ownership integration or quasi-collaborative-type of arrangement. There is going to have to be some contractual arrangement to be guaranteed a patient flow.”

However, Couch does not see the physician-hospital alignment as the end of physicians being responsible for their own medical liability insurance coverage.

“We will see some significant changes [medical liability system], however historically hospitals have never wanted to be the one assuming the risk of the physician practice. Hospitals will be responsible for employing and managing physicians, but I predict that certain hospital systems will not assume responsibility for their employed-physicians’ liability. Those physicians will continue to use third-party insurers like ProAssurance, Medical Protective and the state mutuals; those various companies will continue to have a place in the industry.

“I would recommend hospitals not put their doctors’ risk in their self-insurance trust or captive. Rather, they should carve that out, segregate that risk, yet still coordinate claims and risk management so there is unified claims handling as well as unified quality and safety programs among the doctors. From the perspective of financing the risk, I think a lot of hospitals will continue to look at the traditional third-party medical liability insurance companies favorably, but the smaller carriers will lose market share and will either go out of business or sell their book to larger companies. I don’t see the big players pulling in their horns. More importantly I see them having an appetite with capital to go out and buy more and more. The merger and acquisition activity with the large physician insurers is pretty robust right now if you are paying attention.

Part 2: Texas agent shares how the role of rural hospitals will expand

Editor’s note: Today’s blogpost is the second in a three-part series on how a successful medical malpractice insurance agent views the future of the market and the broker’s role within it. The article it originates from was initially published in the April 2012 issue of Medical Liability Monitor, the industry’s premier source for consistent, reliable coverage and fresh perspectives on medical professional liability insurance and risk management issues.

TORCH was founded more than 20 years ago as the voice and principal advocate for rural community hospitals in Texas, as well as provide leadership in addressing the special needs and issues of those hospitals. There are currently 150 member hospitals, and more than a third of those participate in the organization’s insurance program, banding together for the lower premiums its group-buying power affords. The TORCH insurance program helps its members buy general liability, workers comp, property, D&O and medical professional liability insurance products, among others. According to the organization, the program’s total buying power has tripled since 2007, member participation has increased by 27 percent and the total number of insurance policies purchased with the help of HealthSure has increased by 197 percent.

“It’s been increasingly difficult for rural hospitals to improve their bottom line,” said David Pearson, TORCH president and CEO.  “The economy has been lagging, and it’s become more difficult for hospitals to get adequate reimbursements from Medicare, Medicaid and the different payers. Because rural hospitals have a harder time negotiating a good premium with the carriers, and the renewal process can be a little tricky for smaller organizations, our relationship with HealthSure lets us meet a need that is clearly defined within our membership.”

According to Pearson, with the healthcare delivery model trending towards a more fully integrated one, the hospitals that serve Texas’ more remote areas will play a more significant role than they ever have before. If things play out as intended, people living in these communities will no longer have to drive the sometimes hundreds of miles to see a specialist.

With more patients visiting their local community hospital for treatment, liability exposures are expected to increase. This has rightfully caused many hospital administrators to start looking at varied insurance answers to their varied risk issues.

“The hospitals like that we bring them insurance options,” Couch explained. “Many of them are public entities, and they require multiple bids. We act as their independent agent, bringing them several purchasing options. We are not beholden to any one company. We are not a captive broker or a direct writer, but a high percentage of our business does end up with certain carriers due to preferred arrangements on price and terms that we have negotiated for TORCH members.”

Editor’s note: Check back tomorrow for the third installment where Barry Couch shares how he would advise hospitals in regard to employed-physicians’ medical malpractice insurance.

Part 1: As hospitals acquire physician practices, Texas agent sees opportunity

Editor’s note: Today’s blogpost is the first of a three-part series on how a successful medical malpractice insurance agent views the future of the market and the broker’s role within it. The article it originates from was initially published in the April 2012 issue of Medical Liability Monitor, the industry’s premier source for consistent, reliable coverage and fresh perspectives on medical professional liability insurance and risk management issues.

The Patient Protection & Affordable Care Act (PPACA) intends to change the U.S. healthcare delivery model to one where healthcare providers meeting certain criteria work together to manage and coordinate patient care through an accountable-care-organization (ACO) model in order to meet specific quality performance standards. Since its passage in 2010, hospital systems have responded to the reforms by accelerating their hiring of physicians.

According to a May 2011 article on the hospital employment physicians published in the New England Journal of Medicine, more than half of all physicians practicing in the United States are now employed by hospitals or an integrated delivery system, and that number is expected to grow due to PPACA incentives intended to favor the creation of ACOs and bundled reimbursement payments based on defined population data.

How the migration toward a fully integrated healthcare delivery model will ultimately affect the medical professional liability insurance industry is yet to be seen, but proactive organizations have already started catering to the needs of tomorrow’s healthcare environment.

Barry Couch, founder and chief executive of HealthSure, works with hospital boards, physician groups and healthcare management teams to create competitive advantages, control costs and put together insurance packages to cover and reduce risks in the healthcare industry. A hospital trustee and licensed risk manager, Couch founded the Austin, Texas-based medical liability insurance agency more than a decade ago to help the medical liability industry address the challenges facing the healthcare community.

Couch’s previous 22-year experience serving on the board of directors at King’s Daughter Hospital in Temple, Texas, and his past service as a trustee delegate on the American Hospital Association’s Regional Policy Board had earned him regard in hospital circles. So when the Texas Organization of Rural Community Hospitals (TORCH) was looking for a new perspective for their insurance program, he was a natural contact.

“Several years ago, during the last hard market, I was approached by TORCH to help a couple of public hospitals set-up self-insurance programs,” Couch said. “TORCH then asked if I would takeover their entire insurance program. We did, and the program has grown exponentially since.”

Editor’s note: Check back tomorrow for the continuation of this three-part series. Barry Couch will explain how his company caters to the independent, rural hospitals in Texas.

The Debate Over Damage Caps, Access to Care & the Cost of Medical Malpractice Claims

Diametrically opposed factions have been fighting to frame the debate over the success of the medical liability tort reforms implemented by the Texas Legislature and enshrined in the state constitution by voter approval in 2003.

On one side of the argument are those who promote non-economic damage caps as the best way to limit the number of medical malpractice claims filed, the size of medical malpractice awards and settlements as well as the overall time and expense associated with resolving medical malpractice claims. On the other side are patient-rights advocates who argue the 2003 caps on non-economic damages have blocked legitimately injured patients from the court system and had little effect on the overall cost of healthcare for Texans.

Texas House Bill 4 of 2003 limits total non-economic damages to $750,000 and a physician’s personal liability to $250,000 as well as reforms joint-and-several liability in medical malpractice cases. Voters then approved a constitutional amendment, Proposition 12, which enshrines in the state constitution the Texas Legislature’s ability to impose damage caps. This essentially eliminated the possibility of the non-economic damage caps being challenged in the Texas court system.

According to one recent study, the 2003 tort reforms have been associated with a nearly 80 percent decrease in the number of surgical malpractice lawsuits at one of the state’s academic medical centers, and that this decline in lawsuits resulted in a significant decrease in malpractice-associated costs, e.g. medical malpractice insurance. The study detailed that the prevalence of surgical malpractice lawsuits significantly decreased following tort reform—from 40 claims per 100,000 operations pre-reform to eight claims per 100,000 post-reforms. It further attributes a reduction in defensive medicine as well as significantly reduced legal costs and individual malpractice insurance premiums to the 2003 reforms.

On the other side of the ideological divide, the consumer advocacy group Public Citizen released its own report, which argues the Texas cap on non-economic damages has not reduced medical costs or curbed the ordering of expensive diagnostic tests that are the hallmark of what its opponents call “defensive medicine.” Instead, Public Citizen says that healthcare is less available and more expensive in Texas when compared to national averages. The Public Citizen report details how per-enrollee Medicare spending in Texas has risen 13 percent faster than the national average; the cost of outpatient services in Texas has risen 30.7 percent faster than the national average; diagnostic testing expenditures in Texas have risen 25.6 percent faster than the national average; premiums for private health insurance in Texas have risen faster (51.7 percent) than the national average (50 percent); and the per capita number of primary care physicians practicing in Texas has remained flat, compared to a sharp increase in the years leading up to the caps.

Texas Tort Reform Doesn't Lower Cost of Healthcare; Does Lower Cost of Medical Malpractice Insurance

side note: Consumer advocacy group Public Citizen recently released a study that analyzed data from Texas, which in 2003 imposed some of the strictest liability caps in the country. While medical malpractice litigation plummeted dramatically since the caps were imposed, residents of Texas are still paying as much for healthcare as any other state in the union. In fact, the study shows that the health care picture in Texas has worsened by almost any measure.

That is a true statement: Healthcare is no cheaper in states with non-economic damage caps than in states without non-economic damage caps. The intellectually honest argument for non-economic damage caps is that non-economic damage caps make medical malpractice insurance cheaper for the state’s healthcare community, making it a more attractive place for physicians to practice medicine. According to a New York Times article, there has been a 17 percent increase in the number of doctors practicing in Texas since 2003.

Non-economic damage caps have been proven to have a deflating effect on medical malpractice insurance premiums. This is due to the nature of the insurance game. When setting premiums, insurance actuaries attempt to predict the number of claims that they will see in a year and how much those claims are going to ultimately cost them. Premiums are set in anticipation of these numbers. When there is a cap on non-economic damages, it takes some of the guess work out of the equation. No longer do insurance companies have to anticipate multi-million dollar non-economic damage awards. In other words, non-economic damage caps improve the predictability of future awards and settlements, decreasing the cost of medical professional liability insurance for the state’s physicians and hospital system.

The more affordable medical malpractice insurance is, the more easy it is to run a profitable medical practice. In this way, caps attract an influx of doctors. The more doctors practicing in a state, the greater its citizens’ access to healthcare.

A common perception among policymakers and pundits is that medical malpractice litigation is significantly, or even chiefly, to blame for skyrocketing health care costs and steadily diminishing access to care. But analysis of data in Texas, which in 2003 imposed some of the strictest liability caps in the country, tells a far different story.

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Even Tort Reform Proponents Oppose National Texas-Style Medical Malpractice Law

side note: This story is interesting because it illustrates the Catch-22 the Republican party faces with tort reform. The modern Republican party has aligned itself with libertarian and small-government, states’ rights proponents. They have also aligned themselves with the business and physician communities. The former think that the federal government has no right to impose a one-size-fits-all federal restrictions on the states; the latter wants federal tort reform that includes a federal cap on non-economic damages. These two ideologies naturally clash, which makes appeasing both segments of its political membership very difficult.

Posted by Andrew Cochran
Wednesday, September 21, 2011 11:00 EST

On September 12, Texas Governor Rick Perry called for federal tort reform during the GOP Presidential debate. “You want to talk about some powerful job creation, tell the trial lawyers to get out of your state and to quit costing businessmen and women. That’s what needs to happen in the states. and it’s also what needs to happen at the federal level, passing federal tort reform at those federal levels.” As I wrote on September 16, Gov. Perry now stands against some of the most respected Tea Party-side and conservative legal experts in America, who have written that a federal tort reform law is as unconstitutional as ObamaCare, and for the same reasons. But Gov. Perry also ignored two of the leadingproponents of tort reform, who conceded months ago that a Texas-style national limit on medical malpractice lawsuits is clearly unconstitutional.

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New Texas Medical Liability Tort Reforms Took Effect This Month

side note: On Sept. 1, a series of tort reforms—signed into law in May—intended to expedite the resolution of lawsuits and discourage plaintiffs from filing non-meritorious actions went into effect. These new reforms are in addition to the already stringent reforms enacted in 2003. Following is a closer look at the new regulations concerning lawsuits in Texas.

Since the 2003 passage of House Bill 4 (HB 4), Texas has stood at the forefront of the medical liability tort reform movement. The bill addressed issues such as limits on non-economic damages, punitive damages as well as joint and several liability. The state’s voters also approved a constitutional amendment, Proposition 12, which eliminates potential court challenges to the law that limits non-economic damages to $750,000.
In May, Texas Gov. Rick Perry strengthened the 2003 tort reforms by signing into law House Bill 274 (HB 274), a series of reforms intended to expedite the resolution of lawsuits and discourage plaintiffs from filing non-meritorious actions [see Medical Liability Monitor June 2011—ed.]. The new law went into effect Sept. 1, 2011, and applies to all lawsuits filed after that date. Following is a closer look at the Texas reforms that went into effect this month.

Pre-Discovery Motion to Dismiss
Similar to the practices of other states and the federal courts, Texas has adopted rules allowing a defendant to move for dismissal of a case before discovery is underway. While the rules governing such dismissal have yet to be written (the law tasks the Texas Supreme Court with developing them), the legislature has provided some guidance.

The dismissal must be in response to a motion filed by a party, and in contrast to earlier rules requiring a defendant to allow “adequate time for discovery” before filing a no-evidence motion for summary judgment, now no evidence is needed for a motion to dismiss. Dismissal is warranted for cases “without basis in law or fact,” and the trial court must rule on the motion within 45 days.

Loser Pays Provision
The decision on whether to file a pre-discovery motion to dismiss will be affected by provisions allowing the prevailing party in such a motion to recover costs and reasonable attorney fees from the losing party. Thus, if a plaintiff files a lawsuit without basis in law or fact, and the defendant obtains dismissal, the plaintiff must pay the defendant’s costs and reasonable attorney fees. While this provision is designed to deter frivolous lawsuits, it also aims at deterring frivolous motions to dismiss; a defendant who loses the motion to dismiss will not only have the case proceed, but that defendant will also be liable for paying the plaintiff’s accrued costs and attorney fees.

Easier Interlocutory Appeal
HB 274 removes several impediments to obtaining interlocutory appeal by allowing an immediate appeal of a “controlling question of law” where such an appeal “may materially advance the ultimate termination of the litigation.”

A party may request such an appeal no later than the fifteenth day after the trial court signs the order to be appealed, or the trial court may permit one on its own initiative. Additionally, the parties no longer have to agree to the order seeking interlocutory review, or that the issue involves a controlling question of law. Instead the trial and appellate court will decide whether such an appeal should proceed. If it is permitted, the appellate rules governing accelerated appeals will apply. Finally, the provision allows either the trial or appellate court to stay proceedings pending appeal, even without the consent of the parties.

Encouraging Settlement of Cases
HB 274 includes a number of provisions aimed at encouraging settlement. The provision attracting the most attention is the “loser pays” provision applying to offers of settlement made pursuant to Section 42.003 of the Texas Civil Practice & Remedies Code. HB 274 simplifies and clarifies the current calculus for determining what the loser pays if a settlement offer is rejected. First, “reasonable deposition costs” are added to the definition of “litigation costs” and thus become recoverable, along with court costs, reasonable fees for not more than two testifying experts and reasonable attorney’s fees.

Second, the cap on recoverable litigation costs is raised. Previously, a plaintiff who rejected a settlement offer only to obtain an award that was substantially less favorable could be liable for an amount equal to 100 percent of non-economic and exemplary damages, plus 50 percent of economic damages. Now, the plaintiff could have to pay its entire award to the defendant as litigation costs. Likewise, a defendant who rejects a settlement offer and obtains a ruling less favorable would be liable for litigation costs in the amount of the plaintiff’s award.

The law’s intent is that if the stakes are higher for both sides, parties will think more carefully before making or rejecting a settlement offer pursuant to Civ. Prac. & Rem. Code § 42.003. Whereas before, a plaintiff who rejected a reasonable settlement offer could still walk away with half of its economic damages after paying the defendant’s costs, now a plaintiff who prevails at trial could still end up with nothing but a bill for its own attorney fees.
Development of an Expedited Resolution Process for Cases Under $100,000

The Texas Supreme Court is also tasked with developing new rules to promote the “prompt, efficient and cost-effective resolution of civil actions” where the amount in controversy is less than $100,000. There is little guidance offered for such rules, except that they “shall address the need for lowering discovery costs in these actions and the procedure for ensuring that these actions will be expedited in the civil justice system.”

Limiting Defendants’ Ability to Delay Designating Responsible Third Parties
Finally, HB 247 aims to further expedite resolution of suits by eliminating an existing provision that allows defendants to identify—and plaintiffs to join—a responsible third party after the statute of limitations has run. Now, if limitations have run and the defendant has failed to comply with its obligations, if any, to timely disclose a responsible third party, the defendant loses that option. This provision is clearly aimed at encouraging defendants to timely designate responsible third parties.

Conclusion
HB 274 is another example of why Texas continues to be the state to watch when it comes to tort reform. Although only time will tell whether it results in swifter adjudication of meritorious claims and swifter dismissal of non-meritorious claims, the bill demonstrates the state’s commitment to developing innovative provisions designed to expedite the resolution of civil disputes.

New York Physicians Finding Things a Lot Better in Texas

Side Note: They say things are bigger and better in Texas and this is true for New York physicians who relocate to the Lone Star State. Due to tort reform legislation, known at Prop 12, that went into effect in 2003 in Texas, physicians are flocking to Texas. The article below provides some great statistics on just how true this is –especially with New Yorkers. The article details the exact number of NY physicians who have made the move to Texas since 2003 and the dramatic differences in the medical malpractice insurance rates between the states. Together, New York and Texas illustrate the broad spectrum of the state of medicine and how it can vary dramatically.

If you would like to compare the New York med mal policy rates with Texas med mal policy rates for yourself, they are available on our site. We have a list of medical liability insurance rates by state across various specialties and carriers going back the last 10 years, just for your reference.

If you are a New York physician, MyMedicalMalpracticeInsurance.com may be able to lower your New York med mal rates. If you are a Texas physician, we may be able to lower your Texas med mal rates, too. Contact us today and find out.

Thanks for the doctors, New York
By JOSEPH M. NIXON
From: NYPost.com
Last Updated: August 17, 2011

Former NY OB/GYN Happy Now in TexasDr. Jackelinne Pilar Villalobos was one of Brooklyn’s few female English and Spanish-speaking obstetricians. She loved the city and her patients, and never wanted to leave — but 18 months ago, she moved to Houston, where we’re delighted to have her.

Villalobos’ journey to Texas began in 2003, when our Legislature reformed Texas’ legal system — including sweeping medical-malpractice reforms. Back then, doctors in New York and Texas were paying about the same for medical-liability insurance. In Villalobos’ case, it was more than $100,000.

If you’d like, you can see original article here.