Texas’ economic success, achieved in part by 10 years of civil justice reform, is at risk in the current national health care debate.
Current federal proposals would preempt common sense lawsuit reforms that Texans fought so hard to achieve and from which they have benefited so greatly.
Right now, 30 states have adopted some variant of medical malpractice lawsuit reform. These reforms have accomplished their intended purposes: to encourage doctors to stay in practice, increase the number of difficult cases physicians accept, and provide better access to health care for that state’s citizens. Disallowing those 30 states’ reforms adopted to curb frivolous lawsuits against doctors would be disastrous to the delivery of high-quality, affordable health care – particularly in Texas.
The “commerce clause” of the U.S. Constitution authorizes the Congress to preempt state law. It is threatening to do so under the bill being debated in Congress, which will increase the opportunity to file frivolous medical malpractice lawsuits.
Through the establishment of a national “standard of care” and subsequent medical regulations, state laws imposed on all medical providers and tort claimants will be nullified. The hard work done by state legislators to allow doctors to provide care they believe is medically necessary and to protect doctors from meaningless harassment will be replaced by a committee which will tell doctors where they can practice, what they can charge, and the manner in which they can help their patients. Any deviation could result in a suit.
In Texas, for example, doctors are immune from suit when they donate their service to charity care. All of the medical providers who gave so generously to our neighbors from Louisiana after Hurricane Katrina did so with the confidence they could not be sued. A federal pre-emption ends that protection.
Only in Washington, D.C. would someone come up with the idea that to “fix” health care we need to sue doctors more often.
It is inexplicable why public policymakers view this as appropriate. Rather than having more physicians and better access to health care, we may soon have access to health care insurance without access to doctors. This is much like having a stack of Confederate currency – it’s just paper with meaningless words printed on it.
Even in states with lawsuit reform, too much time and energy is devoted each day managing paperwork to ensure that physicians are not sued or made to defend themselves from frivolous claims. Congress should not worsen this burden that takes time away from caring for patients.
Texans have already made this clear. With Proposition 12 in 2003, Texans changed our constitution to reduce frivolous suits against doctors. The results have been amazing.
We have seen 15,000 new physicians move to Texas, increasing physicians’ ranks in Texas by almost one third. The amount of additional charity care in Texas has increased by more than $600 million per year. Hospital and clinic expansion is at an all time high, measured in the billions of dollars per year of capital improvement.
Why? Because Texas adopted these very clear and simple public policies: requiring a report from a physician in a similar field stating an act of malpractice resulted in an injury when suit was filed; limiting only non-economic damages (i.e. pain and suffering) to $250,000 against a doctor and an additional $500,000 against up to two medical institutions; and prohibiting evidence of phantom damages. There is no limitation on actual damages.
Texas went from almost last in states in physicians per person to the middle in just six years, and continues to move up the list. The growth has been particularly phenomenal in rural Texas. This is real access to health care, even for those without health insurance.
It would be tragic for Texas patients if federal health care legislation was allowed to override the priorities so clearly stated by Texas voters.
The Honorable Joseph M. Nixon is a Senior Fellow with the Texas Public Policy Foundation and of counsel with the Houston law firm Beirne, Maynard & Parsons, LLP. He served six terms in the Texas House of Representatives and chaired the House Committee on Civil Practices during his last two terms.