In 2003 the Texas legislature passed tort reform that, among other things, limited non-economic damages for plaintiffs in medical malpractice suits. The effect of this was to make it highly impractical for many plaintiffs to pursue their cases, however meritorious they were, because the (relatively) small amount typically awarded for economic damages such as lost wages, combined with the completely arbitrary cap on damages for things like pain and suffering, made it too expensive for most plaintiffs with even the most justifiable of cases to sue. A lot of completely dishonest arguments were made at the time by tort reform proponents, who argued that there is a shortage of doctors in Texas because they were driven off by malpractice premiums, medical expenses were being driven up by the need to practice defensive medicine, and so on (left unsaid naturally, was the damage the caps would do to trial attorneys who typically contribute to Democrats.) So, six years into tort reform are we seeing the benefits promised by it’s proponents? Public Citizen says no (via John Coby):
In spite of rhetoric to the contrary, the data show that the health care system in Texas has grown worse since 2003 by nearly every measure. For example:
• The percentage of uninsured people in Texas has increased, remaining the highest in the country with a quarter of Texans now uninsured;
• The cost of health insurance in the state has more than doubled;
• The cost of health care in Texas (measured by per patient Medicare reimbursements) has increased at nearly double the national average; and
• Spending increases for diagnostic testing (measured by per patient Medicare reimbursements) have far exceeded the national average.“Members of Congress have conjured the supposed benefits of the Texas law out of thin air,” said David Arkush, director of Public Citizen’s Congress Watch division. “The only winners have been the insurance companies and, to a lesser extent, doctors.”
And:
Defenders of the Texas law claim it has prompted a massive influx of new doctors into the state, especially in underserved rural areas. But this, too, is false, according to state data. The growth in the number of doctors per capita in Texas has slowed since the liability law took effect. Meanwhile, the number of doctors per capita in underserved rural areas has decreased since 2003.
The only improvement shown by the data is a decline in doctors’ liability insurance premiums. But the reported 27 percent decrease in those premiums is dwarfed by the 67 percent reduction in malpractice payments, suggesting that liability insurance companies have pocketed most of the gains. The Texas data provide no evidence that patients or taxpayers have shared in the windfall at all.
As as vividly demonstrated in this New Yorker article by Atul Gawande, tort reform completely failed to reduce health care expenses in the state because the increase is due to the incentives doctors have to order more tests and treatments, not because the increase was due to malpractice insurance premiums. So who’s benefited the most from tort reform? Doctors whose premiums have fallen (slightly) and who avoid being sued over even the most egregious of malpractice, and insurance companies. Do you think that’s what most Texans in favor of tort reform in 2003 had in mind?
Other than the number of uninsured, and the cost of health care in general, do you know what else has gone up? The number of doctors disciplined in Texas. I don’t want to say that this is because a number of incompetent doctors who are attracted to lower malpractice caps have been drawn to Texas, but it would be irresponsible for me not to speculate, right?
Of course, proponents of tort reform are still cherry-picking and misrepresenting facts to make arguments for further reform, even as health care expenses in Texas have shot up, the number of uninsured has increased, and a shortage of doctors in underserved areas still exists. But I think these results and the larger debate over health care reform make it clear: tort reform is an idea whose time should have never come, and is mostly certainly now gone.
