Texas' Tort Reform Gives Example For Other States

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Even as the nightly news seems to be steeped in story after story about the country’s failing heath care system, former state Rep. Joseph Nixon, writing for the Texas Public Policy Center, points to a success in Texas that other states can emulate.

The 1960s and ’70s saw changes in tort law – remedies for perceived damages. New rulings and new legislation increased things such as class action lawsuits and the concept of punitive damages.

“In this backdrop of an effort to provide plaintiffs remedies for their alleged injuries, Texans were being sued with a greater frequency and ferocity,” Nixon writes. “Doctors were an easy target because they either had insurance or assets necessary to satisfy a judgment.”

The effects of the spike in litigation were felt in other areas, as well.

“In the 1980s, the litigious nature of the state saw a reversal in societal behavior,” Nixon observes. “People became less willing to serve on boards of directors. Recreational facilities closed. Diving boards were removed from swimming pools.”

There were improvements in product safety, Nixon acknowledges, but it was going too far.

“Even volunteers became targets,” he notes. “In Texas, where a doctor might stop and render aid in an emergency situation, the Legislature actually created a statute making a doctor liable for violation of the standard of medical care, even though the doctor was simply volunteering his services and trying to help save a life.”

Early efforts at tort reform were stymied by the courts. In 1988, for example, the Texas Supreme Court threw out a $500,000 cap on medical malpractice damages.

Gov. Rick Perry declared medical malpractice lawsuits a statewide crisis in 2003.

“Doctors were caught between rising medical malpractice insurance costs and lower compensation from insurance-provided benefit contracts and low Medicare/Medicaid reimbursement levels,” Nixon writes. “Combined with increasing hassles and demands to appear in court or in depositions, doctors were choosing to retire or leave Texas. In doctor-per-citizen ratio, Texas ranked 49th out of 50 states.”

Of the state’s 254 counties, more than 150 had no obstetrician in 2003, and more than 120 had no pediatrician.

But lawsuit reform was a driving force in the general elections of 2002. And when lawmakers gathered with a new Republican majority, lawsuit reform was a top priority – culminating in the 96-page House Bill 4.

“The Wall Street Journal called the changes adopted in HB 4 ‘Ten Gallon Tort Reform.’ It has been referred to as a model bill by numerous commentators because it addressed so many changes needed to extinguish the litigation crisis,” Nixon writes.

The reforms included a cap on noneconomic damages in medical malpractice cases, limits on how long after an incident a lawsuit can be filed, and tightening up requirements for “expert” testimony. Doctors who volunteer their time were afforded more protections, and class action rules were reformed.

At the same time, the Legislature crafted a constitutional amendment, Proposition 12, to allow a cap on noneconomic damages. Voters approved it on Sept. 13, 2003.

The results have been “remarkably positive,” Nixon writes.

“All across Texas, there are undeniable signs that Proposition 12 and HB 4 are fulfilling the promise of healing our health care delivery system and quieting an inflamed legal system,” he contends.

Doctors are flocking back to the state – 7,000 since the passage of Proposition 12, and the state licensing board anticipates adding another 5,000 doctors in the next 15 months.

Texans can be proud of the reforms enacted in 2003, reforms that can serve as a model for other states.

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