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Steven J. Klearman
Steven J. Klearman
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Medical Malpractice Reform Does Not Deliver in Texas

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Rural Texas is still waiting for the doctors tort reform was supposed to deliver. This comes from the American Association of Justice quoting Suzanne Batchelor writing for the Texas Observer:

The flood of beguiling baby photographs began cascading into mailboxes across Texas as the 2003 fall election drew near. Gracing the cover of a slick brochure, the infant smiled as a stethoscope–held by an unseen but presumably kind physician–was pressed to its chest. “Who Will Deliver Your Baby?” the mailer asked.

The direct-mail pitch was one of many churned out by insurance and medical interests as they spent millions urging voters to pass Proposition 12, a constitutional amendment that would limit the amount of money patients or their survivors could recover in medical malpractice lawsuits.

Swaddled in the glossy brochures was a dire threat. Greedy lawyers were besieging doctors with unwarranted lawsuits that were making malpractice insurance rates skyrocket. Doctors were fleeing Texas, leaving scores of counties with no obstetricians to deliver babies, no neurologists or orthopedic surgeons to tend to the ill. Without Proposition 12, the ad campaign warned, vast swaths of rural Texas would go begging for health care.

Choosing between greedy trial lawyers and cuddly babies was no contest for most Texas voters. Proposition 12 passed. Four years later, vast swaths of rural Texas are going begging for health care.

Proposition 12, and the far-reaching changes in Texas civil law that it dragged behind it, was built on a foundation of mistruths and sketchy assumptions. The number of doctors in the state was not falling, it was steadily rising, according to Texas Medical Board data. There was little statistical evidence showing that frivolous lawsuits were a significant force driving increases in malpractice premiums.

Perhaps the most insidious sleight of hand employed by Proposition 12 backers was their repeated insistence that medical malpractice insurance rates were somehow responsible for doctor shortages in rural Texas.

“Women in three out of five Texas counties do not have access to obstetricians. Imagine the hardship this creates for many pregnant women in our state,” Gov. Rick Perry told a New York audience in October 2003 at the pro-tort-reform Manhattan Institute for Policy Research. “The problem has not been a lack of compassion among our medical community, but a lack of protection from abusive lawsuits.”

The campaign’s promise, that tort reform would cause doctors to begin returning to the state’s sparsely populated regions, has now been tested for four years. It has not proven to be true.

Since Proposition 12 passed, insurance companies–many grudgingly–have lowered their rates. More doctors are coming to Texas, as a recent New York Times article trumpeted. That is proof, say Proposition 12’s backers, that so-called tort reform is working.

“Texas has seen a tremendous success in luring doctors to practice in our state thanks to tort reform passed in 2003,” says Krista Moody, Perry’s deputy press secretary. Moody noted that the Texas Medical Board is having to add staff to handle a backlog of doctors applying for state licenses.

Those doctors are following the Willie Sutton model: They’re going, understandably, where the better-paying jobs and career opportunities are, to the wealthy suburbs of Dallas and Houston, to growing places with larger, better-equipped hospitals and burgeoning medical communities.

On a Texas map inside the beguiling-baby mailer, blood red marked the 152 counties in Texas that did not have obstetricians in 2003. Rural doctor shortages were kept front and center as the state’s physicians, led by the Texas Medical Association and the Texas Association of Obstetricians and Gynecologists, campaigned for Proposition 12.

A flier printed by the TMA in English and Spanish and posted in waiting rooms across the state told patients that “152 counties in Texas now have no obstetrician. Wide swaths of Texas have no neurosurgeon or orthopedic surgeon. … The primary culprit for this crisis is an explosion in awards for non-economic (pain and suffering) damages in liability lawsuits. … vote “YES!” on 12!”

As of September 2007, the number of counties without obstetricians is unchanged–152 counties still have none, according to the Observer’s examination of county-by-county data at the state Medical Board.

Nearly half of Texas counties–124, or 49 percent–have no obstetrician, neurosurgeon, or orthopedic surgeon. Those specialists aside, 21 Texas counties have no physician of any kind. That’s one county worse than before Proposition 12 passed, when 20 counties had no doctor.

The TMA counts 186 new obstetricians in Texas since Proposition 12 passed, and President Dr. William Hinchey offers that as proof of tort reform’s effectiveness.

No independent study has shown what caused the increase, though Texas medical schools have graduated increasing numbers, by the hundreds, of physicians every year since 1997, the earliest year for which TMB posts data. And the state’s growth probably played some part. According to the U.S. Census Bureau, Texas’ population grew 12.7 percent between 2000 and 2006, compared with 6.4 percent for the country as a whole. The number of obstetricians in Texas increased only 4.27 percent over the same six years, including three years under tort reform.

More telling is where the new obstetricians–and neurosurgeons and orthopedic surgeons–decided to go.

The Medical Board’s latest obstetrician data for the 254 Texas counties reveals that several counties led the gains.

Collin County, the Dallas suburb that is the wealthiest in Texas in terms of per capita income, gained the most obstetricians. Its 34 new ones increased its obstetrician ranks by an impressive 45 percent since Proposition 12 passed.

In second place is Montgomery County, Houston’s northern neighbor along the booming Interstate 45 corridor, and the state’s fourth-fastest growing county, according to the U.S. Census 2006 estimate. Montgomery gained 19 obstetricians. Tarrant County followed with 17.

Next, at 12 each, are Galveston and Hidalgo counties. Among the rest, a few counties gained in single digits, a few lost, and the majority of counties–two thirds–remained the same.

With well-equipped, well-staffed hospitals, plenty of colleagues, and insured patients, it’s not hard to see why Collin County would attract the most obstetricians or offer them the most jobs. Collin’s population grew 42.1 percent from 2000 to 2006; the county encompasses Plano, Carrollton, and a small part of Dallas.

The county’s Presbyterian Hospital of Plano alone has 73 obstetricians and 30 neonatologists for newborns. Two allied hospitals serve nearby Allen and Dallas, and the three are far from Collin’s only hospitals.

Margot and Ross Perot gave $6 million last October to the Presbyterian Hospital of Plano for maternal and infant care. The Margot Perot Center for Women and Infants has been named “Best Place to Have a Baby” by DallasChild magazine 11 years in a row. The Presbyterian system has even been honored locally for its baby sign-language classes.

The pattern of doctors’ opting to practice in more affluent, urban areas holds true for Texas’ overall gains in neurosurgeons (36) and orthopedic surgeons (185) since 2003.

The number of neurosurgeons statewide increased 8.8 percent in the past four years. The biggest share, again, went to Collin County, which gained seven. Bexar and Harris counties each gained five, while Lubbock gained four, and Tarrant, three. At last count 216 counties, or 85 percent, have no neurosurgeon.

Texas has added 185 orthopedic surgeons since 2003, a 10.3 percent increase. Harris County gained the most with 25, followed by Dallas County with 21, Tarrant County with 19, Travis County with 16, and Collin County with 15. There are no orthopedic surgeons in 169 Texas counties.

For more information on this subject, please refer to the section on Medical Malpractice and Negligent Care.