President's Page March 2003

Robert W. Haley, MD

The Medical Liability Crisis
Close to a solution

Last year one of the four neurosurgeons who shared trauma call at Methodist Medical Center learned that his medical liability insurance carrier was leaving the state and that his insurance premium would increase from $80,000 per year to more than $200,000. He left the state. Unable to find a neurosurgeon willing to move to Texas to share emergency room call—none are interested in Texas—Methodist administrators have learned that the Texas Commissioner of Health is obligated to remove their level 2 trauma center designation. In turn, this shift in trauma care may place Baylor University Medical Center’s participation in the regional trauma consortium at risk, leaving Parkland the impossible burden of taking all the area’s trauma. For want of a nail, the battle was lost.

This is but one of many examples of how the explosion in medical liability insurance premiums is damaging the practice of medicine and limiting access to care for all Dallas residents. The true gravity of the situation is indicated by the crescendo of organized physician walkouts in the Rio Grande Valley, West Virginia, Las Vegas, Palm Beach, and New Jersey—a remarkable development for a profession typified by the inability to mount coordinated political action. Medicine truly is approaching a melt-down.

The root of the crisis is no secret—skyrocketing medical liability insurance premiums caused by lawsuit abuse. Over the past decade, the average medical malpractice verdict in Texas has increased 400 percent, from $472,982 to $2,048,541. Corporate stock market revenue notwithstanding, the premium escalation mainly is because the awards for noneconomic damages (pain, suffering, and punitive damages) have exploded far out of proportion to those for economic damages (what the patient actually lost as a result of the injury).

To understand what’s behind this, consider that in the past four years, one in four Texas physicians had a medical malpractice claim filed against him; 85 percent of these claims were dismissed or simply dropped without payment to the patient; and up to 60 percent of each award goes to the attorneys. You get the picture.

The good news is that we are close to a solution. The centerpiece is a cap of $250,000 on noneconomic damages, not indexed to inflation. Also included are limiting attorneys’ fee percentages, prohibiting double-dipping collection on economic damages from multiple policies, restoring a limitation on the statute of limitations for injuries to minors, providing immunity for physicians rendering charity care, raising the burden of proof in cases involving emergency care, enacting procedural reforms to reduce frivolous suits, and prohibiting trial attorneys from striking potential jurors because they have concerns about runaway verdicts.

The California reform package, including the $250,000 cap on noneconomic damages, blessed by its state Supreme Court in 1984, has held medical liability premiums for California physicians to an 85 percent gain over 25 years, compared to a 261 percent gain nationwide. That works out to a 3.4 percent annual gain, which is less than that of the Consumer Price Index. The strategy works.

TMA strategists have crafted three legislative proposals that are being pursued in the state legislative session. First, a constitutional amendment to legitimize the cap is by far the preferred route to provide a rapid, permanent remedy. Second is a statute based on the state’s police powers. Third is a statute based on a quid pro quo; that is, physicians who agree to carry a moderately high level of liability coverage to ensure restitution to injured patients would, in return, enjoy the cap on noneconomic damages.

Our reform package is supported by the governor, the lieutenant governor, the speaker, the state Supreme Court, and the public. The big test is to get the required vote in both houses, and, with your help, we appear to have an even chance.

This means it’s crunch time for doctors! Now is the moment to contact your state representative and senator. Look in the January DMJ where we published their names and contact information, or find it at www.dallas-cms.org, under the legislative section. If you don’t know your legislative district number, look on your voter registration card. Study the issues on the TMA Web site (www.texmed.org/liability/default.asp), and enlist the help of your friends and patients, where appropriate. Contact your representatives, tell them what you want, educate them on why it is so crucial, watch how they vote, and keep talking to them until the end of the legislative session. The stakes are high; don’t let this opportunity pass. Act!

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