Texas Tort Reform Not a ‘Failed Experiment,’ Healthcare Leaders Say

October 17, 2011

A new report claims tort reform in Texas is ineffective because it does not cut healthcare spending. Experts say that’s an unfair assessment to make.

While a new report claims tort reform in Texas is ineffective because it does not cut healthcare spending, experts say that’s an unfair assumption to make, especially because tort reform was never meant to achieve cost savings in the first place.

“We never claimed that lawsuit reform would reduce consumer healthcare costs,” Jon Opelt, executive director of the Texas Alliance For Patient Access, told Physicians Practice. “The purpose of lawsuit reform was to improve access to care. It did that.”

The Texas Alliance For Patient Access is a statewide coalition of healthcare professionals working to improve access to healthcare through various reforms.

The report, entitled “A Failed Experiment” and put forth by nonprofit consumer advocacy group Public Citizen, says Texas healthcare has worsened in key respects since the state imposed a $250,000 cap on the amount of noneconomic damages patients could recover from doctors. 

The crux of the report’s argument rests on a link made between healthcare spending, defensive medicine, and tort reform.

According to the report, a key argument put forth by tort reform supporters is that malpractice caps decrease healthcare spending because they make doctors less wary of malpractice risk. The report claims healthcare spending has not decreased in Texas and therefore it has failed in the state.

“Those who blame malpractice litigation for the broken economics of our healthcare system typically tout laws limiting physicians’ liability as the answer,” the report states. “The data tell a far different story.”

But Texas-based health law attorney David Hilgers says to make the broad statement that tort reform has “failed” largely because it has not reduced healthcare spending is “unfair.”

“You don’t change decades of behavior overnight and healthcare spending has not worsened due to the liability caps,” he told Physicians Practice.

Opelt agrees, noting that the report is using “disconnected” issues to try to make its point.

Further, orthopedic surgeon and president of the Texas Medical Association, Bruce Malone, says he takes issue with the fact that healthcare spending is even part of the report’s argument in the first place.

“When we campaigned for tort reform, we never promised it would lower the cost of medical care,” he told Physicians Practice. And he noted, the reforms have “dramatically” changed Texas healthcare for the better.

In Texas, as a result of tort reform more OB/GYNs are taking on pregnancies, more physicians are working in less desirable areas, more physicians are located in the state in general, and patients have better access to care, Malone says.

Opelt adds that tort reform has stopped the “exodus” of doctors and insurers from the state; it has “stabilized” the insurance marketplace; and it has increased the number of patient visits per year in Texas by six million.

An additional argument made by the Public Citizen report is that Texas’ doctors “escape accountability for their errors,” because of tort reform.

But Hilgers says that’s another incorrect conclusion. “Physicians are inherently concerned about their performance,” he says, adding that the Texas Medical Board has made a “strenuous effort to ensure physicians are practicing correctly.”

Tom Smith, director of Public Citizen’s office in Austin, told theTexas Star-Telegram that the report shows other states just how flawed tort reform is.

"This report shows that the rest of the nation should not hold up Texas as a model. The only winners are the doctors and the insurance companies," he said.

But that’s not the case, Opelt says. Not only are patients seeing increased access to healthcare, more dollars that would have been otherwise used on staggering liability premiums are available now for practices and hospitals to use on improving patient care.

Tort reform means “more care to more people in the community,” he says.

But Opelt, Hilgers, and Malone all agree that tort reform has benefited physicians as well.

“It’s allowed me to control a little bit of my overhead” during a time when reimbursements have steadily decreased, Malone says. “By being able to cut my premiums in half, essentially, it’s been able to keep our doors open.”