Text of speech (associated PowerPoint is at http://www.slideshare.net/stevelevine/protecting-texas-medical-liability-reforms-piaa-2014) delivered to PIAA Medical Liability Conference in Toronto, May 14, 2014

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Protecting Texas’ Medical Liability Reforms
By Jon Opelt
Executive Director
Texas Alliance For Patient Access
During the next several minutes we’ll be talking about protecting Texas’
medical lawsuit reforms. We will discuss those reforms that have been
affirmed by the courts as well as elements that remain unresolved. I will
show you proof that the Texas reforms are working and lastly I’ll discuss the
challenges that remain ahead.
What is a medical liability case worth? It’s a simple question but in Texas,
prior to September 2003, it was not an easy question to answer.
 Parties argued over the value of past medical bills.
 Non-economic damages were constantly in dispute. Settlement
discussions were often influenced by where the case was filed and
who was representing the plaintiff.
 Plaintiff lawyers regularly sent demand letters seeking a doctor’s
policy limits.

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 The demand letter might conclude with a statement to this effect: You
will put a check on my desk for the policy limits of the insured in no
less than 10 days. If you fail to do so, I will take you to court and win
a verdict larger than the policy limits for which you will pay.
 Even if the case was marginal, you had to respect the plaintiff’s
bargaining position.
And so, the insurance company paid—and oh did they pay.
In 2003 Texas lawmakers passed comprehensive medical liability reforms in
an attempt to lift the state out of an acknowledged access to care crisis. (2)
Chief among those reforms was a $750,000 stacked cap for non-economic
damages. The cap is not indexed for inflation. There are no exceptions.
The total capped amount varies depending upon the number and variety of
defendants in a suit. Doctors can be held responsible for no more than
$250,000 in non-economic damages. The same is true of hospitals and
nursing homes. If an unrelated health care institution is involved, they too
can be held responsible for an additional $250,000 in non-economic
damages. The combined non-economic award against all parties in a health
care claim may not exceed $750,000.

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Other elements of the Texas medical reform bill include: (3)
 A $1.9 million wrongful death cap. Punitive damages are included
within the cap.
 The plaintiff may only collect actual medical bills incurred. Prior to
2003, plaintiffs routinely sought recovery of medical charges they did
not pay, were not paid on their behalf and they didn’t owe. These
phantom damages typically involved the pursuit of full medical
charges billed by the healthcare provider rather than the reduced
amount paid by the health insurer.
 Sweeping expert witness reforms were adopted.
The plaintiff is now required to produce an expert witness report
within 120 days and the witness can be struck if it is determined he or
she lacks the requisite knowledge, experience or qualifications to
serve as an expert. This and other procedural changes have
substantially reduced lawsuit costs and filings.
Other elements of the Texas reform package include: (4)
 A demonstration of “willful and wanton” conduct in order to prove a
negligence case involving emergency care.

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The courts have defined willful and wanton as gross negligence.
The heightened ER standard provides significant protection for a physician
who had no prior contact with or health history from the patient
 Texas law now requires periodic payment for future medical costs and
gives the judge the option of allowing periodic payment for other
future damages.
 Doctors are now granted a 10-year statute of repose. A plaintiff must
file suit within 10 years of the incident otherwise the case is time
barred. This effectively cuts in half the tail of an obstetrician and
those specializing in newborns and premature infants.
 Lastly, (5) we capped the excess policy limits for physician liability
carriers. The language simply states, “ The liability of any insurer may
not exceed the liability of the insured.
In addition to passing the reform bill, (6) we took the extraordinary step of
passing a constitutional amendment.

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The purpose: To protect the cap from court challenges and to expedite the
anticipated benefits for patients and healthcare providers.
Enacting a damage cap, we argued, would improve access to care. It would
stem the loss of doctors who were leaving or limiting their practice due to
soaring liability costs. And, it would stabilize the insurance costs paid by
doctors, hospitals and nursing homes thus allowing them to remain in
practice to treat sick and injured patients.
The ballot initiative was a risky proposition. (7) We knew the sooner the
cap was deemed constitutional; the sooner rate relief became viable. But if
we lost the ballot initiative then lawmakers could say they misread the will
of voters and go back into session and undue the reforms they had just
passed.
(8) Supporters and opponents spent more than $17 million in the battle over
lawsuit limits, making it the most expensive campaign ever on a state
constitutional question. Despite being outspent by the trial lawyers by $1.4
million, we prevailed; winning by a scant 33,000 votes.
(9) During the past 10 years we have kept our entire reform package intact.

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We have filed 27 friend of the court briefs in an attempt to preserve
legislative intent and we spent four years in court and $1.1 million in legal
fees in successfully defending our non-economic cap in federal court.
Additionally, we spent $100,000 on a comprehensive law review article. It is
a project that continues to pay dividends. (10) The law review weaves
together legislative testimony and debate, commentary during floor votes
and research submitted for the record to capture what legislators were
considering and why they made the decisions they did.
The law review article has been cited in 5 Texas Supreme Court decisions,
16 intermediate court opinions and 53 appellate briefs.
In 2007, (11) our organization successfully lobbied for an emergency
appropriation and increased biennial funding for the Texas Medical Board to
hire licensing personnel. This allowed the medical board to clear a lengthy
backlog in physician applicants and paved the way for a record number of
new licensees.

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Applicants were waiting as much as nine months to get their Texas medical
license approved. We feared if the backlog wasn’t cleared the applicants
would lose interest in Texas and choose to practice elsewhere. Then, the trial
lawyers would argue that the reforms had not produced the influx of new
physicians that tort reformers had promised. And therefore, the reforms were
a failure.
The Texas reforms are not a failure. They are a rousing success.
(12) More than two-thirds of the state’s 22 trauma service areas experienced
a per population loss in direct patient care physicians during the liability
crisis period. Since then, (13) 80% of the state’s trauma service areas have
experienced a per population gain.
(14) During the crisis years, the number of new applicants and new licensees
stagnated or declined. Since then, (15) the number of new physicians
applying for a Texas license is at an all-time high and the number of licenses
granted continues at near record levels—growing even faster than our fast
growing population.

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Since the passage of reforms (16) in 2003, Texas has added 8,810 more in-
state active physicians than can be accounted for by population growth
alone. The bottom line of this chart holds the 2003 physicians per capita
number constant adjusting for population growth. The top line is the actual
number of in-state active physicians.
Population growth may well account for 42 percent of the state’s new
physicians. The other 58 percent above the trend were produced by some
other factor. Many of the state’s newly minted doctors have cited the state’s
more hospitable legal climate as a significant factor in their choosing to
practice in Texas.
(17) During the post-crisis years, the numbers of high-risk specialists in
Texas have grown more than twice as fast as the state’s population.
(18) Rural Texas was losing physicians per population during the liability
crisis years. (19) Today, those numbers are on the upswing. Since the (20)
passage of reforms, thirty-two rural counties have added an obstetrician. (21)
Twenty-four rural counties have added a cardiologist and (22) seventeen
have added an orthopedic surgeon.

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The rural gains are not simply a bi-product of population growth. (23) For
instance, 50 counties that did not have a single ER doctor at the passage of
reforms now do. Forty of those counties are rural. Fifteen rural counties that
lacked a cardiologist and thirteen counties that lacked an obstetrician now
have one.
(24) The Association of American Medical Colleges collects comparative
data on physician supply in all 50 states. During the past four years, only
California has added more patient care doctors than Texas (and not by
much). Remember, California’s population is 50% greater than that of
Texas. Only Utah bested Texas in percentage growth. (25)
From 2008-2012, the most current years (26) for which comparative data is
available, the Lone Star State ranked 17th
in per population physician
growth; a remarkable accomplishment given our explosive population
growth.

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In the run-up to reform, (27) the trial lawyers argued that capping pain-and-
suffering-type awards would have little effect in lowering the insurance
premiums of doctors and hospitals.
Boy, were they wrong. Roughly 30 rate cuts, numerous dividends, and more
than $2 billion in liability savings later, the trial lawyers are absolutely
wrong. Most Texas doctors haven their liability rates cut in half.
Imposition of the cap on pain and suffering has dramatically reduced
liability costs for health care providers, increased critical care services for
patients and been a magnet for attracting a record number of new doctors to
our state.
(28) In 2003 Texas doctors were paying slightly more than their New York
counterparts for liability coverage. Texas adopted much-needed reforms.
New York did not. Today, Texas doctors pay half the rates they were paying
10 years ago. Meanwhile, New York physicians have seen their rates hiked
60 percent.

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Therefore, it should not surprise you that since the passage of reforms in
2003, more than 1,200 New York trained doctors have pulled up stakes and
moved their practice to Texas.
(29) The law is what the courts say it is. Many, if not most, aspects of the
reform package have been affirmed.
For instance:
 The periodic payment provision was upheld.
 The plaintiff is required to produce an expert witness report within
120 days of filing suit.
 The expert report requirement is neither unconstitutional nor vague.
(30)
 The willful or wanton standard was upheld for emergency room care.
 A medical malpractice suit cannot be artfully pled as simple
negligence. Likewise, ordinary negligence and medical malpractice
cannot be pursued within the same claim.
(31)
 The court limited damages and evidence regarding “phantom”
medical expenses.

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Specifically, our state Supreme Court limited the recovery of medical
expenses to only those damages that a health care provider is actually
entitled to collect. And based on the limitation, the court held that only
recoverable medical expenses are admissible at trial.
Because juries often base awards of non-economic damages, such as pain
and suffering, on a multiple of economic damages in the case, this decision
will also temper excessive awards for soft damages.
The ten-year statute of repose was upheld.
The Texas high court ruled that a plaintiff must file a health care claim
within 10 years of the act or omission otherwise the case is time barred. This
so-called “statute or repose” is different than a statute of limitations in that it
addresses deferred claims for potential injuries that may be inherently
undiscoverable.
(32) The law is what the courts say it is.

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 The Fort Worth Court of Appeals held that prejudgment interest is
economic in nature and not subject to the $250,000 non-economic
cap.
 Two Texas appellate courts have held that the non-economic cap is a
sub-cap of the wrongful death cap. That is, in a death case, both caps
apply.
(33)
 A federal court has upheld Texas’ non-economic cap as has the Dallas
Court of Appeals. However, the Texas Supreme Court has not heard a
cap case. Thus, the constitutionality of Texas’ cap in state court
remains an open question.
As previously mentioned, the Texas Supreme Court has upheld the
10-year statute of repose. However, the El Paso Court of Appeals
ruled this provision does not apply to minors if the injury occurred
prior to the minor’s eighth birthday. The court held that the statute is
in violation of the Open Courts provision since it necessitates a parent
or guardian filing suit on behalf of the child.

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This is not a revelation. Parents and guardians customarily file suit on
behalf of a minor. Most of the cases that are filed more than 10 years
from the date of treatment involve minors rather than adults. So, if the
statute of repose is limited to adults, then the primary effect of the law
will have been lost and doctors will need to buy extensive tail
coverage.
We have filed a friend of the court brief in this matter and the Texas
Supreme Court has agreed to hear the case.
(34) True, our non-economic damage cap is constitutionally protected. But
that does not mean it is untouchable. The Legislature could raise the cap or
index it for inflation. Or it could carve out exceptions to the cap for
misconduct or permanent injury or the providing of abortions. I’ll talk about
that cap-busting strategy later.
(35) The greatest threats to Texas tort reforms are the fallout of a ballot
initiative in California and a court decision in Florida.

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As you have heard , California’s long-standing non-economic cap is being
challenged through ballot initiative. The measure contains a provision to
force a cost of living adjustment to the $250,000 cap. If the provision
passes, the cap will be raised to just over $1.1 million, with a mandated cost
of living adjustment going forward.
Quadrupling of the California cap and tripling the amount lawyers can take
in fees would be devastating to the California health care community and
would put great pressure on the Texas Legislature to consider raising our
cap. We are closely monitoring the arguments being raised by both sides and
the how the public and opinion shapers are responding to those arguments.
Also, we’ve made a financial contribution in defense of the California cap
And encourage you to do the same.
(36)
In March, the Florida Supreme Court ruled that the state’s non-economic
damage cap in wrongful death cases was unconstitutional because it failed
the rational basis challenge and violated Florida’s Equal Protection Clause.
In essence, the court concluded that even if a crisis existed when the cap was
passed, a crisis is not a permanent condition and there was no evidence that
a crisis exists today.

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Specifically, the court stated that, “Conditions can change which remove or
negate the justification for a law, transforming what may have once been
reasonable into arbitrary and irrational legislation.”
Look for the trial lawyers to raise a similar argument in Texas claiming the
success of Texas’ cap in reducing premiums and increasing access to care
makes the cap unnecessary.
Of course, abolition of our cap would thrust us back into crisis.
(37)
We fully expect the Texas trial lawyers to try and move a bill that would
lower the standard in an emergency care case to something less than gross
negligence. The trial lawyers have argued that patients can’t find
representation and can’t collect damages under Texas’ heightened
emergency care standard. Clearly, the facts show otherwise.
(38)
In conclusion, a bill will likely be filed that creates an exception to the cap.
The current trial lawyer strategy is to ask social conservatives to move a bill
that denies cap privileges to any physician, hospital or clinic that provides an
abortion. This is simply a Trojan Horse approach to getting a cap busting
bill on the floor of the House or Senate. Once they’ve got the bill on the

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floor they can amend it to create broad exceptions to the cap.
The Texas trial lawyers aren’t conceding nor are they retreating. They are
simply recalibrating how best to move their agenda. This includes attempts
to discredit tort reform’s success in the press, cloaking trial lawyer issues in
the social agenda of the Republican Party, and relentlessly mounting tort
challenges in the court.
We take all of these threats seriously and remain committed to keeping the
Texas turnaround intact.
Thank you for inviting me to speak.

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