Cherry Hill, New Jersey

HomeNew JerseyCherry Hill

Email Mike Ferrara Mike Ferrara on Avvo
Mike Ferrara
Mike Ferrara
Attorney • (866) 735-1102 Ext 650

Texas Tort Reform is NOT a Model for Nationwide Health Care Reform


Tort reformers like to talk a lot about how the threat of malpractice suits raises health care costs by forcing doctors to practice “defensive medicine”—the ordering of unnecessary tests, procedures, and prescriptions in an attempt to protect themselves against a possible negligence lawsuit.

In a 2008 AMA survey, they remind us, a majority of the doctors who responded admitted to practicing defensive medicine—a number that translates, the AMA calculated, to $1.4 billion more spent annually on health care. If our doctors weren’t threatened into doing this, we’d all save loads of money and our national health crisis would be over.

Are the tort reformers right? Well, let’s look at Texas. Several years ago, the state passed a stringent medical malpractice law that capped awards for pain and suffering at $250,000, and brought the number of malpractice lawsuits down dramatically.

So the cost of health care in Texas must also be down, you suppose, since doctors don’t face the same malpractice threats as the rest of the country. Eh, No. In fact, Texas is home to three of the top ten most expensive cities in the country to receive health care: McAllen, Harlingen and Corpus Christi. In each of these cities, every Medicare patient is costing the country more than $10,000 a year (a couple thousand more than the national average).

So if defensive medicine against the threat of malpractice suits isn’t driving up costs, what is?

Harvard Medical School surgeon Atul Gawande got a candid answer to this question from a general surgeon in McAllen, Texas:

“Come on,” the general surgeon finally said. “We all know these arguments are [BS]. There is overutilization here, pure and simple.” Doctors, he said, were racking up charges with extra tests, services, and procedures.

The surgeon came to McAllen in the mid-nineties, and since then, he said, “the way to practice medicine has changed completely. Before, it was about how to do a good job. Now it is about ‘How much will you benefit?’ ” –Atul Gawande, The NewYorker

While tort reform like Texas’ won’t improve the cost of our health care, changing our charge-per-service structure just might.


Have an opinion about this post? Please consider leaving a comment or subscribing to the feed to have future articles delivered to your feed reader.

  1. Mike Bryant says:
    up arrow

    Minnesota has great care and because of our efficiency have some of the lowers Medicare reimbursement rates. In a system where you make more by people coming in vs. getting info over the phone, it is clear what clinics are doing. Texas continues to be to be watched, just to see if they can come up with any benefits for the consumer.

  2. Penny Lane says:
    up arrow

    Let’s all work together to get a system that everyone likes. I think the biggest problem is with the mega-insurance companies who must make a profit at any cost. They should be subject to anti-trust laws like every other company. They have too much power.

  3. up arrow

    No doubt you are on the money on this one. It’s not just Texas, the same is true for almost every state that pasted laws limiting patient rights.

  4. Steve Lombardi says:
    up arrow

    When you see Governor Perry addressing a room full of people about how he’s just protected them from being responsible for their professional mistakes, know that behind the Governor are the patients who he’s turned his back on. They are the same voting citizens that professional mistakes injured, disabled, killed and maimed. They are the people whose lives were turned upside down and who will never retire while those making the mistakes get an early retirement. We need not wonder why this next generation isn’t willing to accept responsibility for their lives; they need only look to our generation and the greed that pervades our political decision-making. Now the only question Governor Perry needs to address is what does he have to say to the catastrophically injured patient who suffers because of the mistakes made by licensed professionals? Should those patients take comfort in knowing Texas is a magnet for doctors with poor surgical skills or who can’t get cheap malpractice insurance in some other state? Should they take comfort in knowing they won’t be alone and that other suffering patients will soon follow in their foot steps? Exactly who voted this man into office?

  5. Steve Lombardi says:
    up arrow

    And one more thing I’d like to say. (Do I ever run out of one more things to say?) Defensive medicine is pure poppycock. If doctors are ordering tests when there is no medical necessity, BCBS and Medicare wouldn’t pay for those tests. Otherwise it would be condoning fraud. Like the concept of “the frivolous lawsuit”, the idea of “defensive medicine” is made up by Madison Avenue to line the pockets of those who cry wolf. P

  6. Steve Lombardi says:
    up arrow

    People are sheep who will believe anything.

  7. up arrow

    I agree, Steve.

    Defensive medicine? What’s wrong with that? I should hope that my doctors and nurses are more concerned with defending my health than they are with defending themselves from a lawsuit in the first place.

    People tend to forget (or fail to consider) that in our contingency fee system, having a good case (clearly showing medical negligence) is a requirement for even considering filing suit.

    If you are only ordering that MRI to be absolutely sure my child’s head injury isn’t life threatening because you are afraid of being sued, then I am not sure I want you as my health care provider.

  8. Mike Ferrara says:
    up arrow

    A book was written called “What’s The Matter With Kansas” or something akin to that. It detailed why Kansas voted overwhelmingly for Bush when he was in was in the worst interests. The Sheep just need to be informed. A massive PR campaign by AAJ is something I’ve been advocating for years. The public has to know that their rights are being taken away by the Insurance Companies and their lackies. I actually had a doctor call my radio show and say he didn’t feel doctors should accept personal responsibility for the harms they cause! See the link at http://www.thebigtalker1210.com for the August 30, 2009 Legal Perspectives Show.

  9. Phil Johnson says:
    up arrow

    Wow, injury attorneys who don’t agree with tort reform, I’m shocked.

    Of course healthcare practioners are going to make mistakes, they’re human beings not machines. Malpractice insurance premiums are so high for doctors because lawyers know the deep-pocketed insurance companies pay the settlements, not the doctors. So what’s wrong with asking for millions in punitive damages that go way beyond the actual needs of the patient? That new car will really help the victim’s family get by, plus the lawyer’s vacation home doesn’t pay for itself.

    I have a serious medical condition and I know my doctor works in my best interests. But I think it’s wasteful of my time and his if he orders an extra test or MRI to validate something he is already 95% certain of based on years of experience. But, he orders it anyway out of fear of a possible lawsuit and an increase in his malpractice premiums, which then lead to higher charges to the patient. Do some doctors abuse “defensive medicine” practices? Absolutely. But given the current legal environment, it is very easy to justify ordering an additional prodcedure and having Medicare or the patient’s insurance company provide reimbursement. The same way a lawyer can easily justify filing a lawsuit for “medical negligence”.

    Patients’ rights do need to be protected, but at what point does protection turn into abusing the system?

  10. Steve Levine says:
    up arrow

    I hate to tell you boys (and Ms. Lane), but health care liability reform in Texas was never about reducing defensive medicine and holding down costs. That will happen, someday, but those defensive medicine practices are ingrained into physicians who’ve spent decades with lawyers peering over their shoulders.

    No. Health care liability reform in Texas was all about improving access to quality health care for Texans — especially those who are sickest or most severely injured. That’s exactly what has happened.

    By all measures, the reforms have worked exactly as promised. Patients have better access to needed and timely care. More physicians provide specialty and high-risk obstetrical care in both urban and rural areas.

    Texas has gained more than 14,000 new physicians to take care of Texas patients. Many of these physicians practice high-risk specialties such as emergency medicine, neurosurgery, pediatric intensive care, and pediatric infectious disease medicine. Patients now can get more timely and convenient care when needed. Twenty-one rural Texas counties have added at least one obstetrician since the passage of Proposition 12, including 12 counties that previously had none.

    The 2003 liability reforms have worked. They’ve lived up to their promise. Sick and injured Texans now have more physicians who are more willing and able to give them the medical care they need.

    Steve Levine
    VP, Communication
    Texas Medical Association

  11. Pete says:
    up arrow

    Imagine – a bunch of lawyers who don’t like tort reform.

  12. Anonymous says:
    up arrow

    Imagine that – a state medical society “executive” opens his mouth and out comes hot air. Shocking.

  13. John Bailey says:
    up arrow

    In 2006, the state’s 26,497 commercially insured doctors saved roughly $49 million in premiums, an average of about $1,811 each, according to the Texas Alliance for Patient Access. This figures out to between $3 and $6 per patient.

    The following is from an above post. In another analysis, I read that the number of counties without an obstetrician remains at 152. Please look further for verification.

    Twenty-one rural Texas counties have added at least one obstetrician since the passage of Proposition 12, including 12 counties that previously had none.

  14. Steve Levine says:
    up arrow

    In 2003, Texas had 152 counties without at least one practicing obstetrician. Since then, 24 rural counties have added at least one obstetrician; 12 of those counties previously had none. In all, 52 Texas counties have seen a net gain in obstetricians, including 23 medically underserved counties and 21 counties designated partially medically underserved.

    Source: Office of Rural Community Affairs
    Texas Medical Board
    Texas Alliance For Patient Access

    Steve Levine
    VP, Communication
    Texas Medical Association

  15. John Hopkins says:
    up arrow

    And the injured victims of Texas continue to be denied their constitutional rights while physicians still have all theirs.

  16. Steve Levine says:
    up arrow

    And the far, far larger number of very sick and badly injured patients in Texas now get health care and recover.

    No question it’s a trade-off. The Texas Legislature and the voters of Texas decided the need for access to health care was the greater need. And it’s paid off.

    Steve Levine
    VP, Communication
    Texas Medical Association

  17. John Bailey says:
    up arrow

    It seems that there must still be 140 counties without an obstetrician by your account. This is not much progress for six years. In fact, this totally discredits the premise that tort reform would increase the availability of doctors and access to medical services.

  18. Mike Ferrara says:
    up arrow

    Steve: I am honored that the Texas Medical Association would have the interest and time to respond to my blog. This is such a complex topic I would like to see the doctors and lawyers sit down and find a compromise that doesn’t deprive harmed patients from having their day in court. The Chamber of Commerce does the doctors no good by shilling for the insurance industry in the name of tort reform. There has to be some common ground, and we should work together to find it. Our Affidavit of Merit statute in New Jersey and PA is working quite well, for example. We are just concerned about depriving citizens, that includes you and your loved ones, of the right to hold folks personally responsible for the harms they cause. Thanks again, Cordially, Mike.

  19. Penny Lane says:
    up arrow

    When President Bush was Texas Governor and Karl Rove was his advisor, they decided to take away the rights of Texas patients in the name of tort reform. Their clever plan was to hurt the pocketbooks of the Texas Trial Lawyers, who gave a ton of money to Democrats. Now, the Texas Trial Lawyers make much less money and have less to give to D’s. The unfortunate side effect is the citizens of this fine state of Texas are now left having their rights taken away by Karl Rove. And some are actually happy about it. Aren’t politics grand?

  20. Jerry Andrews says:
    up arrow

    Mr. Levine: You claim that “health care reform” or liability immunity never had a goal of reducing defensive medicine or holding down costs. The AMA said: “Passage of a Texas medical malpractice ballot initiative appears likely to produce the impact physicians desired — a decrease in liability premiums. And doctor groups hope that the measure’s success will spur similar action in other states.” So the real goal was reducing malpractice premiums to attact more doctors. Have damage caps attracted more physicians? UT law professor Charles Silver corrected the TMA propoganda suggesting that doctors were flocking to Texas. New doctor inflows are part of the equation, but when you look out outflows, it turns out the number of docs in Texas has increased minimally in the time period in question, while the state’s population continues to expand rapidly. Also see: http://www.click2houston.com/news/20776852/detail.html, # docs, not keeping up with Tx population. Further the TMB reports increases in investigations and disciplinary actions against Texas doctors in the order of 80% since 2003. So, are Texans better off with reform? The relative number of doctors is growing slower than the population is, more doctors being disciplined, healthcare costs are higher, and the most seriously injured and killed folks have no forum for redress. When do things get better?

  21. Steve Levine says:
    up arrow

    All – am enjoying this conversation.

    Some points and corrections.

    Penny Lane: Current Texas Gov. Rick Perry was the governor of Texas in 2003 when our health care liability reforms passed. Mr. Bush and Mr. Rove were busy in Washington, DC, at that time.

    John Bailey: Have you ever been to the rural parts of south and west Texas? They are very desolate and remote places with very little health care services at all. Liability reform is helping but is not the only answer. Texas has 254 counties. Of those:
    – 195 have population under 50,000
    – 137 have population under 20,000
    – 53 have population under 5,000
    This is not New Jersey or Pennsylvania. Overall, Texas is poorer and vastly underserved from a medical perspective.
    As I’ve said before, though, we’ve seen some important improvements in sheer numbers since 2003. Seventy-six counties have seen a net gain in ER physicians, we’ve added 220 new orthopedic physicians, and 49 neurosurgeons. More important, though, the physicians in the state are now willing to see and care for high-risk patients. There were many mid-sized communities in Texas (100,000 or more) that had neurosurgeons — but none who would go to the ER to handle a skull fracture. That’s changing. And all of that is good for patients.

    Jerry Andrews: We have some real fundamental differences with Professor Silver’s research and his methodology. No time to go into that now. Texas Medical Board statistics show that the growth in physicians in Texas – and that includes both primary care and specialists – has outpaced our very rapid population growth. The news story you reference was inaccurate; the Associated Press has since put out a correction. Finally, the intent was for the Texas Medical Board to handle more complaints against physicians. That’s a much better route to go than through the courts. We intentionally strengthened the board’s disciplinary powers in 2003 – the same year we passed liability reforms.

    All is not black and white. Thanks for the opportunity to share our perspective on gray. For some more, TMA trustee Dr Carlos Cardenas of McAllen will be on CNN’s Anderson Cooper 360 show at 10 pm ET tonight

  22. BOB TALASKA says:
    up arrow

    Texas’ Med Mal reform has made it extremely difficult for patients with meritorious cases to seek compensation in the Court System.
    The expert report requirement for filing has become a boondoggle for the defense bar and insurance companies. There have been many cases kicked out on HYPER technicalities because the certifiying reports were insufficient. The non economic damage cap applies per patient not per defendant. Doctors now argue over what percentage of of the 250,000 cap they are going to pay. Insurance companies refuse to pay anywhere near the cap to settle cases as they have little economic incentive or pressure to do that. It seems the defense bar and insurance industry in Texas is trying to deny, delay, and create all kinds of work to dissuade attorneys from taking on these capped cases because of the cost, risk and hassle given the limited return.
    Patient care in Texas is declining as the inherent protections and safety the civil justice system provides due to accountability has been removed.
    TMA will skew the statistics about new doctors – the reality is the new OBs are going to the wealthy suburbs and not the disadvanted rural areas.
    Tort reform in Texas is a failure and its negative impact on patient safety and physician and hospital accountablity is being felt.

  23. Shawn says:
    up arrow

    “And one more thing I’d like to say. (Do I ever run out of one more things to say?) Defensive medicine is pure poppycock. If doctors are ordering tests when there is no medical necessity, BCBS and Medicare wouldn’t pay for those tests. Otherwise it would be condoning fraud. Like the concept of “the frivolous lawsuit”, the idea of “defensive medicine” is made up by Madison Avenue to line the pockets of those who cry wolf.”

    Wow Steve, sure sounds like you know a lot about medicine here. I’m sorry to say, that you obviously don’t know much about ‘medical necessity.’ It’s very very EASY to order a scan or lab test that you do not really NEED per say, to rule out something extremely rare or improbable. Do you know how? By having a physician say, I need this scan to rule out rare disease ‘X’. Thus, making it medically necessary.

    It’s not actually fraud, because you see there was a ‘medical reason’ for ordering the test, although it probably wasn’t required for medical treatment. But what do I know, I’m not a lawyer.