The mythical benefits of tort reform in Texas

[boutons_deux]

if Perry had his way, all the states would do as Texas did in 2003 when lawmakers enacted legislation, which he championed, limiting the amount of money juries can award patients who win malpractice lawsuits against doctors and hospitals. The legislation capped non-economic (pain and suffering) damages at $250,000 in lawsuits against doctors and $750,000 against hospitals. A few months after he signed the bill into law, the state’s voters narrowly passed a constitutional amendment, also endorsed by Perry, which had the same effect. Proponents of the amendment wanted to be sure the new law would be constitutional.

Texas, he wrote in that 2009 commentary “stands as a good example of how smart, responsible policy can help us take major steps toward fixing a damaged medical system, starting with legal reforms.”

As a result of the 2003 tort reform law, malpractice liability insurers reduced their rates in Texas and, according to Perry, the number of doctors applying to practice medicine in the state “skyrocketed.”

He says that in the first five years after tort reform was enacted, 14,498 doctors either returned to practice in Texas or began practicing there for the first time.

That certainly sounds impressive—so long as you look at that number in isolation. But when you look at how Texas stacks up with the rest of the country in terms of physician growth in direct patient care, tort reform appears to have given Texas no leg up in competition with others states for doctors. In fact, according to statistics compiled by the American Medical Association and other physician organizations, Texas has actually lost ground when it comes to the number of doctors practicing in the state since tort reform was enacted. Big time.

In 2008, the number of physicians in patient care per 10,000 civilian population in the United States was 25.7. At just 20.2 doctors per 10,000 people, Texas ranked near the bottom of the 50 states. In fact, only nine states fared worse. In 2000, three years before tort reform, Texas was still bringing up the rear, but not as badly. Back then, 11 states fared worse than the Lone Star state.

Even more revealing, the number of doctors in patient care increased 13.2 percent nationwide from 2000 to 2008. It increased only 12.8 percent in Texas. The rate of growth was actually greater in 41 other states and in Washington, D.C. than it was in the Lone Star state.

It is true that malpractice insurance rates dropped in Texas after tort reform was enacted, but Texans would be hard pressed to claim any direct benefit from that drop—except, that is, Texans who are doctors.

The Dallas Morning News published a chart earlier this year showing that the average malpractice rate charged ob/gyns in Texas by the state’s largest domestic insurer of physicians fell from $53,752 in 2003 to $33,881 in 2011. The paper reported drops of similar percentages for doctors in family practice and general surgery.

Advocates of tort reform have long claimed that one of the reasons for escalating health care costs is the “defensive medicine” doctors practice, such as over-treating and prescribing more medications and diagnostic tests than necessary, out of fear of being sued. Well, if Texans believed their own health insurance rates would go down once tort reform made defensive medicine less prevalent, they have by now been disabused of that notion. The chances of a Texas family saving a few bucks on premiums would actually be greater if they moved to another state.

In 2010, the average premium for family coverage in Texas was $14,526. That’s $655 higher than the U.S. average. Those numbers seem to indicate that doctors have not passed on their own insurance savings to their patients and that they are not practicing medicine any less defensively than before tort reform was enacted.

http://www.iwatchnews.org/2011/09/01/6097/analysis-mythical-benefits-tort-reform-texas

=======

tort reform as a means to reduce sick-care costs is just another sick-care industry lie

[Capt Bringdown]

Have you seen the HBO documentary Hot Coffee (http://www.hbo.com/documentaries/hot-coffee/index.html), that focuses on tort reform?

The title refers to the infamous McDonald's spilled coffee case which has entered into national consciousness. And of course, "national consciousness" most often means a stupidity and ignorance that borders on arrogance.

Everyone has an opinion on that case, right? Lady spills coffee on herself while driving her car, subsequently sues McDonald's and gets rewarded millions of dollars. This case is has become part of our folklore about greedy plaintiffs and lawyers, and about how we tort reform.

From a movie review:

...She asks people on the street about the woman who spilled the coffee on herself. To a person, each of them believes Liebeck’s case was to some degree egregious on the plaintiff’s part. Then Saladoff shows them the gruesome photos of Liebeck’s burned groin. Instantly, opinions waver.
- more- (http://www.washingtonpost.com/lifestyle/style/tv-review-on-hbos-hot-coffee-a-persuasive-finding-for-the-plaintiffs/2011/06/17/AG3RDSmH_story.html)


Here's the photos of the woman's actual burns, and a link to a page with a lot of facts about the infamous coffee case and other cases covered in the film.

http://neufeldlawfirm.com/blog/wp-content/uploads/2011/08/stella-liebeck-mcdonalds-coffee-burns-300x213.jpg
http://neufeldlawfirm.com/blog/wp-content/uploads/2011/08/mcdonalds-coffee-burn1-300x231.jpg


The basic problem is that the people who support tort reform movements believe they are helping to do away with “frivolous” law suits….until they get injured. When they are injured and realize that the cap on their damages creates a situation where it is impossible to get the money the injured party needs to simply pay their medical bills for the rest of their life, they realize that a system that has enacted “tort reform” has no ability to discriminate the frivolous suits from the legitimate ones. So good people who are legitimately hurt and have legitimate bills to pay as a result of the negligence of another, are left with no recourse.
- more - (http://neufeldlawfirm.com/blog/personal-injury/hot-coffee-hbo-documentary/)

[DarrinS]

Public service announcement:


Don't drive with a styrofoam cup of boiling liquid between your thighs.

[Bartleby]

Was she driving when she tried to open it?

[DarrinS]

Was she driving when she tried to open it?

Don't know. Thought she ordered it at drive thru.

[DarrinS]

This just in: Coffee is extremely hot

[ElNono]

In an ideal world, I'm ok with capping punitive damages.
What I'm afraid of is that the powers that be will lobby to set the caps too low. And once you open up that can of worms, then more lobbying will ensue to drive it lower and lower.

[Bartleby]

This just in: Coffee is extremely hot

If it's hot enough to cause 3rd degree burns, it shouldn't be served at a drive thru in a styrofoam cup. And it's not as if McDonald's didn't know people were burning themselves with it.

[ducks]

public service announcement
40% more one on food stamps under this guy in the whitehouse
35% more debt under this guy on the whitehouse
yeah this guy white house sure changed the USA to bad it went the wrong way HUH
YOU VOTED FOR HIM I SURE AS HELL DID NOT

[SnakeBoy]

In 2008, the number of physicians in patient care per 10,000 civilian population in the United States was 25.7. At just 20.2 doctors per 10,000 people, Texas ranked near the bottom of the 50 states. In fact, only nine states fared worse. In 2000, three years before tort reform, Texas was still bringing up the rear, but not as badly. Back then, 11 states fared worse than the Lone Star state.

The author should have compared the list of states physicians per 10k population with the list of states with the fastest population growth. He might have noticed something.

[ducks]

capping lawsuits would lower insurance cost and hostpitals and doctors would charge less

[Bartleby]

capping lawsuits would lower insurance cost and hostpitals and doctors would charge less

You didn't actually read the OP, did you?

[FromWayDowntown]

capping lawsuits would lower insurance cost and hostpitals and doctors would charge less

Maybe we should just ban personal injury lawsuits altogether.

Why cap -- that's a compromise. Why not just go all the way?

If people get hurt or killed, oh well; at least the stuff they buy and the services they seek will be cheaper, right?

[Agloco]

Don't drive with a styrofoam cup of boiling liquid between your thighs.


Was she driving when she tried to open it?


Don't know. Thought she ordered it at drive thru.

More drive by chicanery from Mr. Darrin. The text in red would have sufficed.

[ElNono]

Maybe we should just ban personal injury lawsuits altogether.

Why cap -- that's a compromise. Why not just go all the way?

If people get hurt or killed, oh well; at least the stuff they buy and the services they seek will be cheaper, right?

Free!!!!

[Capt Bringdown]

Public service announcement:


Don't drive with a styrofoam cup of boiling liquid between your thighs.

Best to know some facts before drawing conclusions, don't you think?


In the Liebeck v. McDonalds case, here’s what the media failed to mention: Ms. Liebeck wasn’t even driving. She was in the passenger seat with her nephew who had just accepted food from the drive-thru.

Ms. Liebeck attempted to settle with McDonalds for $20,000 to cover her past medical expenses, future medical expenses and loss of income. McDonalds countered with a settlement offer of $800.

$800 for:
The coffee scalded Mr. Liebeck’s groin, thighs, and buttocks and, after going to the hospital, where she remained for eight days, it was determined that there were third-degree burns on six percent of her body and lesser burns over 16%. During her hospital stay, Ms. Liebeck lost 20 pounds (which lowered her weight to 83 pounds) as she underwent multiple skin graft operations. Two more years of treatment and more skin grafting would be necessary.

The trial also revealed that McDonalds had over 700 burn complaints prior to Ms. Liebeck’s law suit for their hot coffee. McDonalds quality-control manager explained that, in his opinion, such a “small” number of complaints did not warrant the company to take any action.

BUT WHAT ABOUT THE FACT THAT SHE SPILLED THE COFFEE? ITS NOT LIKE A MCDONALD’S EMPLOYEE THREW COFFEE AT HER!!!! What also went under-reported is the fact that the jury considered this information and apportioned her with 20% of the fault associated with spilling the coffee. As would happen in any trial, this apportionment of liability, by the jury, reduced Ms. Liebeck’s verdict by 20%.

In the end, the jury awarded $160K in compensatory damages (medical bills, lost wages, pain & suffering) and $2.7 Million in punitive damages. The punitive damages represented two-days’ worth of McDonald’s coffee sales.

What also went largely unreported is the fact that the $2.7MM in punitives was reduced, by the judge, to $480K. Not only that, but Ms. Liebeck settled her case with McDonald’s for an undisclosed sum before the case could go up on appeal.

- more - (http://neufeldlawfirm.com/blog/personal-injury/hot-coffee-hbo-documentary/)

[Capt Bringdown]

capping lawsuits would lower insurance cost and hostpitals and doctors would charge less


It was pointed out that (in the documentary film Hot Coffee), in states where insurance companies (for-profit institutions that have shareholders) benefit from caps….there is no rule that savings have to be passed down to policy holders.

- more - (http://neufeldlawfirm.com/blog/personal-injury/hot-coffee-hbo-documentary/)

[scott]

You continue to ignore the fact that SpursTalk posters are significantly more qualified to make judgments than people who have what you liberals like to refer to as "facts."

[MannyIsGod]

:lol

[ducks]

the only people you liberals want to every kill is babies
not murders

[Wild Cobra]

You didn't actually read the OP, did you?
The OP cobbled together statistics that were only loosely related.

Key fact...

Insurance prices dropped.

Texas went from #11 to #10 from the bottom. Did the get worse, or someone get better? Did they get better, but another state even better yet?

Where is the proper context to compare?

How many people I wonder cross the border for treatment?

[Wild Cobra]

Maybe we should just ban personal injury lawsuits altogether.

Why cap -- that's a compromise. Why not just go all the way?

If people get hurt or killed, oh well; at least the stuff they buy and the services they seek will be cheaper, right?
If I read that right, the damages were not capped. Just the punitive costs.

[Wild Cobra]

More drive by chicanery from Mr. Darrin. The text in red would have sufficed.
I think we all agree that the coffee was too hot for the circumstances, but really now...

Where is the personal responsibility?

[Wild Cobra]

the only people you liberals want to every kill is babies
not murders
Yep...

Slaughter the innocent, but coddle the murderer.

[Agloco]

Where is the personal responsibility?

Dunno, possibly awash in the steam bath that was her coffee?

What if she had burned her tongue or scalded her throat? Aside from the magnitude of the calamity, whats different?


I think we all agree that the coffee was too hot for the circumstances, but really now...

Is there ever a circumstance where coffee should be served if it's capable of causing third degree burns?

[FromWayDowntown]

I think we all agree that the coffee was too hot for the circumstances, but really now...

Where is the personal responsibility?

She was sitting in a parked car, in the passenger's seat, trying to prepare her coffee without the benefit of a cup holder. The mythology of Stella's avarice and stupidity is simply amazing. The mistitled "Citizens" Against Lawsuit Abuse "groups" have done a truly remarkable job in demonizing an elderly woman who suffered appalling injuries and making her the symbol of all that's supposedly bad.

What personal responsibility do you want her to accept?

[vy65]

Is there any evidence that tort reform increases insurance premiums? Lessens the quality of medical care?

I hope people realize that the caps are on non-economic damages. There is no cap AFAIK on compensation for the actual harm (i.e., medical bills). But that's just a minor distinction, right?

I'd be curious to find out whether the 2.7mm award against McDonald's was for their conduct in trying to settle the case as opposed to the actual harm the lady suffered.

[FromWayDowntown]

Yep...

Slaughter the innocent, but coddle the murderer.

If he could, I suspect that Cameron Todd Willingham would take issue with your claim that "murderers" are coddled.

[FromWayDowntown]

I hope people realize that the caps are on non-economic damages. There is no cap AFAIK on compensation for the actual harm (i.e., medical bills). But that's just a minor distinction, right?

In some places (Nebraska, for one), there's a hard cap on even economic damages. I suspect that a lot of tort reform proponents see something along those lines as a goal in their efforts.

Frankly, my earlier post was only partially meant as sarcasm. I'm quite convinced that the tort reform movement is, to some degree at least, hopeful that it can wholly eradicate personal injury litigation by making it entirely cost prohibitive. If you can't outlaw it affirmatively, you sure as hell can put up as many practical roadblocks as possible.

[vy65]

In some places (Nebraska, for one), there's a hard cap on even economic damages. I suspect that a lot of tort reform proponents see something along those lines as a goal in their efforts.

I might be speaking out of my ass, but how's that not a due process violation?

[boutons_deux]

"hopeful that it can wholly eradicate personal injury litigation"

so people who are injured by corps or docs or whomever are just fucked?

[vy65]

In some places (Nebraska, for one), there's a hard cap on even economic damages. I suspect that a lot of tort reform proponents see something along those lines as a goal in their efforts.

Actually - the Nebraska example is disingenuous. From Gourley the case that upheld the statute imposing the cap

The Nebraska Hospital-Medical Liability Act was created to address a perceived medical liability crisis. The act created a medical review panel, capped the amount of damages that could be recovered, and created the Excess Liability Fund. Neb.Rev.Stat. §§ 44-2801 et seq. (Reissue 1998). Under the act, health care providers that do not opt out of the act's coverage must file proof of financial responsibility with the Director of Insurance and pay surcharges for the excess liability fund. §§ 44-2821 and 44-2824. The act allows patients to opt out of the act's coverage. § 44-2821(3). Section 44-2825 provides:

(1) The total amount recoverable under the Nebraska Hospital Medical Liability Act from any and all health care providers and the Excess Liability Fund for any occurrence resulting in any injury or death of a patient may not exceed... (c) one million two hundred fifty thousand dollars for any occurrence after December 31, 1992.

(2) A health care provider qualified under the act shall not be liable to any patient or his or her representative who is covered by the act for an amount in excess of two hundred thousand dollars for all claims or causes of action arising from any occurrence during the period that the act is effective with reference to such patient.

65*65 (3) Subject to the overall limits from all sources as provided in subsection (1) of this section, any amount due from a judgment or settlement which is in excess of the total liability of all liable health care providers shall be paid from the Excess Liability Fund pursuant to sections 44-2831 to 44-2833.

[ElNono]

What's disingenuous about it?

[FromWayDowntown]

It may be mistaken, but it wasn't disingenuous. I offered that example from anecdote and probably should have checked it before offering it.

[vy65]

What's disingenuous about it?

The implication drawn from NE's hard cap is that people are not being fully compensated from the injuries. That implication is incorrect.

[The Principal]

http://neufeldlawfirm.com/blog/wp-content/uploads/2011/08/stella-liebeck-mcdonalds-coffee-burns-300x213.jpg


Two days later after having sex with Tyson Chandler.

[ElNono]

The implication drawn from NE's hard cap is that people are not being fully compensated from the injuries. That implication is incorrect.

Then why this happened to Gourley?

A jury ruled that Colin was a victim of medical negligence, finding that $5.625 million was needed to compensate him for his medical care and a lifetime of suffering. But Nebraska's law -- a cap on damages -- severely cut this jury verdict to a fraction of what Colin needs. As a result, Colin will have to rely on the state for assistance for the rest of his life. His family had to move from their home to pay for his care. They are now having to fight Medicaid for Colin's continuing treatment.

Not that I don't believe you, but something doesn't jive.

[vy65]

Why did what happen? I don't understand your question.

[ElNono]

Why did what happen? I don't understand your question.

Why was the $5.625 million award reduced to the cap on the Act on subsection 1 ($1.25 million)?

Honest question, BTW.

[vy65]

Why was the $5.625 million award reduced to the cap on the Act on subsection 1 ($1.25 million)?

Honest question, BTW.

I'm not so familiar with this type of shit, but my guess would be to prevent over-compensating plaintiffs for their future medical bills.

[ElNono]

I'm not so familiar with this type of shit, but my guess would be to prevent over-compensating plaintiffs for their future medical bills.

Actually, I just found the ruling:

http://caselaw.findlaw.com/ne-supreme-court/1294749.html

Notice that the cap was applied, and the Gourleys sued basically over what you mentioned earlier (special legislation, equal protection, open courts and right to a remedy, right to a jury trial, taking of property, and separation of powers).

But the Supreme Court was 'unconvinced', and held the statute as constitutional and thus the cap was applied.

I have a feeling that the Fund payments might go through 'as needed' and that medical professionals might not want to take on patients that don't opt-in into the act. It's the only way that makes sense to get a reduction on malpractice policy, IMO. Interesting case.

[ElNono]

Actually, I take that back. Reading through the "response to the justice McCormick dissenting opinion" (:wow), the Fund is there to cover the difference between the $200,000 cap up to the max amount ($1.25 million).

To compensate for judgments above $200,000 per qualified health care provider, but below the cap on total recovery, the act creates the Excess Liability Fund (hereinafter the Fund), which is supported by a surcharge levied on all qualified health care providers.   See § 44-2829.

[ElNono]

About due process:

However, as the per curiam opinion correctly determines, the issue of substantive due process has not been brought before this court, and we are precluded from deciding, on the record and briefing before us, whether the act comports with that constitutional mandate.   Nonetheless, my judicial responsibilities compel me to express my serious reservations regarding the act's satisfaction of constitutional due process, for the benefit of other litigants, the members of the Legislature, and their constituents, the public.

[ElNono]

BTW, since I have some resident lawyers reading around here, I'm working on a CLE app for iOS devices (iPad, iPhone, etc) so you can track your current CLE on different states. I might need a beta tester or two, so if any of you guys are interested, please PM me.

/end sales pitch :D

[vy65]

I didn't pay attention to the "subject to the overall limits" language from what I posted. My bad.

I do find it curious that a patient has the ability to opt out of the Hospital Medical Liability Act. http://nebraskalegislature.gov/laws/statutes.php?statute=44-2821

[ElNono]

I didn't pay attention to the "subject to the overall limits" language from what I posted. My bad.

I do find it curious that a patient has the ability to opt out of the Hospital Medical Liability Act. http://nebraskalegislature.gov/laws/statutes.php?statute=44-2821

Yeah, and the court noted that. Unfortunately, I have a feeling you're asked to sign in into the act before you get care. From a malpractice insurance POV, you couldn't get $200,000 coverage if you have patients that could go over, IMO.

[vy65]

About due process:

However, as the per curiam opinion correctly determines, the issue of substantive due process has not been brought before this court, and we are precluded from deciding, on the record and briefing before us, whether the act comports with that constitutional mandate.   Nonetheless, my judicial responsibilities compel me to express my serious reservations regarding the act's satisfaction of constitutional due process, for the benefit of other litigants, the members of the Legislature, and their constituents, the public.

I can't get over this. In the preceding paragraph, the argument I was thinking of (due process being violated when the property of tort victims is taken by the legislature in the form of a cap) is made. I have no idea why you'd try equal protection and not due process in this case. Makes no fucking sense at all. :cry