Texas Reforms
 

 This is the case that Will and I used for the first half of the 2005-2006 season.


In February of 2003, Governor Rick Perry urged the legislature of Texas to adopt medical liability reforms to combat the litigation hostilities that Texas doctors were suffering from. The legislature agreed to the reforms the governor requested, and the crisis was solved.

 

Because we understand the importance of learning from history and looking to previous successes while formulating policy, we stand “Resolved: that medical malpractice law should be significantly reformed in the United States.”

 

First off, and let’s define some words in our definitions we’re going to be using in today’s round, to make sure we’re on the same page.

 

Non-economic damages: Damages payable for other than monetary losses, such as pain and suffering.” Congressional Budget Office, 2004-[1]

 

Joint and Several Liability: Is the philosophy [when one or more doctors are liable for a malpractice incident] that a doctor can be sued for 100% of the incident, even if he was only the cause for part of it. In other words, he can be sued for someone else’s mistake.

 

With that, let’s move on to what the status quo is, in our inherency.

 

1. There is a medical malpractice crisis in many states

 

Michelle M. Mello, JD Ph.D, 2003 [[2]]

 

“A major medical malpractice crisis is unfolding in the United States today. The American Medical Association has identified 18 states in which physicians and institutional health care providers are having grave difficulties obtaining affordable professional liability insurance.”

 

2. Texas was in a medical malpractice crisis

 

Gov. Rick Perry's State of the State speech, delivered February 11, 2003

 

“[W]e must reform our medical malpractice laws by passing a $250,000 cap on non-economic damages. All across Texas, patients are seeing their doctors hang up their white coats and stethoscopes because they are being forced out of practice.”

 

Texas is in a bad situation, right? Weeeell… actually no. You see, the governor said that at the beginning of 2003. Later that year, the medical malpractice law was reformed here in TX. That’s right, reforms, mainly including a caps on non-economic damages, and a reform of Joint and Several Liability, has been instituted in Texas. Let’s look at this more specifically in our next inherency point:

 

3. Texas’s passed a successful reform

 

Texas Medical Association, 2005 [[3]]

 

 “Since the enactment of House Bill 4 in the 2003 Texas Legislature and the voters' approval of Proposition 12, every professional liability insurance underwriter in Texas has reduced its premiums for physicians.”

 

Texas has been successful. They have shown that it is possible to reform the system, and to solve the errors of the status quo if only we pass a comprehensive reform. Texas is a good model for what can and should be done when it comes to medical malpractice law reform.

 

4. Texas is a wonderful testing ground

 

 According to various professionals and experts from the Journal of Empirical Legal Studies (they just sit around being smart :-p), in July of 2005 [[4]]


“Texas is a useful setting for assessing trends in health care, including medical malpractice. Texas is the second largest state measured by population and the third largest in total health-care spending.”

 

After all, if you want to see if a policy will work on the national scale, why not try it out in a former nation?

 

It is because of these successes found that we present the following plan that the affirmative team advocates in today’s round.

 

Each of the 50 state governments shall pass and enforce the following mandates. No funding is necessary.

 

1. Non-economic damage caps. Each state shall cap non-economic damage awards at $250,000 per defendant. This cap shall exist in all situations other than when one or more health care providers are liable, or when there is a wrongful death action. In these two exceptions, there will be a 500,000 cap.

 

2. Punitive Damage Caps. Punitive damages in medical malpractice lawsuits shall be capped at $200,000.

 

3. Joint and Several Liability. In states that have not already done so, “Joint and Several Liability” shall be replaced with proportional liability.  Under proportional liability, in all medical malpractice lawsuits involving the fault of more than one party the court will enter a judgment against each party liable only in accordance with that party's percentage of fault. In other words, a doctor cannot be sued or punished for someone else’s mistake.

 

Please Note: All monetary figures are subject to increase or decrease in accordance with the consumer price index.

 

Now that we see the plan that has worked right here in Texas to lower insurance premiums, and to hold doctors accountable only for that which they have done, let’s take a look at some advantages (or reasons for passing the plan).

 

The first advantage we’ll look at is “1. Lower Health Care Costs.”

 

Now if you remember what the Texas Medical Association said, you’ll see that the insurance premiums went down in Texas. Because the doctors pay less insurance premiums with caps, the cost of health care will go down. The cost is also affected by less defensive medicine. We can see this by looking to the words of Fred Hellinger, [Ph.D] and William Encinosa, [Ph.D], written in 2003 [[5]]

 

“In another article, Kessler and McClellan examined the impact of tort reforms on the practice of defensive medicine and found that tort reforms such as reasonable limits on noneconomic damages, which have been in effect in California for 25 years, can reduce health care costs by 5 percent to 9 percent without substantial effects on mortality or medical complications--”

 

It makes sense. If you lower doctor’s costs, you lower the cost of health care.

 

Now let’s move on to the next advantage to passing the plan, which is “2. Greater access to health care.”

 

In the most basic terms, the atmosphere will simply be more doctor-friendly, rather than hostile. Now there are several reasons for this, the first being that not as many doctors will not be forced to quit practice because of malpractice insurance. No longer shall, as we quoted Gov. Perry saying earlier, “doctors be forced to hang up their white coats” because of outrageous insurance costs. Also, with the medical profession no longer economically hostile, the future doctor population shall increase also, because of economic incentive.

 

The results of this can be found in the words of Mark McClellan, [MD and Ph.D.] when he wrote 2005 [[6]]:

 

“Rapidly rising premium rates can have a real impact on patient access to care.   A study by the Agency for Healthcare Research and Quality examined how the supply of physicians varied across states between 1970 and the present.  The study concluded that states adopting caps on non-economic damages experienced about 12 percent more growth in physicians per capita than States without caps.”

 

Now that we see how the doctor population will benefit, let’s move on to our last advantage, which deals specifically with our abolishment of Joint and Several Liability.

 

The advantage is “3. Justice better upheld.”

 

Doctors can be forced to pay for someone else’s mistake. This is blatantly unjustified, and for the sake of justice, must be replaced with proportional liability. Doctors should ONLY be sued for their mistakes, not anyone else’s. This is supported by the Health Insurance Week, when they wrote in 2005 [[7]] that:

 

 “With the elimination of joint and several liability, defendants will be held accountable for their share of any fault, no more, no less…[[8]]  Each of these reforms is critical to any meaningful reform package.”

 

In conclusion: There is a crisis in America, and doctors can be sued and forced to compensate hundreds of thousands… for something they have not done. An affirmative ballot can change that.

 

I now stand ready for cross-examination and other points of clarification.



[1] Congressional Budget Office, "Limiting Tort Liability for Medical Malpractice" an ECONOMIC AND BUDGET ISSUE BRIEF, January 8th, 2004

http://www.cbo.gov/ftpdocs/49xx/doc4968/01-08-MedicalMalpractice.pdf

 

[2] Michelle M. Mello, J.D., Ph.D., David M. Studdert, LL.B., Sc.D., M.P.H., and Troyen A. Brennan, M.D., J.D., M.P.H, “The New Medical Malpractice Crisis”, Volume 348:2281-2284 June 5, 2003 Number 23

http://www.medical-journals.com/r0356c.htm

 

[3] Texas Medical Association, “Texas Liability Rates Dropping After Prop 12”, April 27th

2005  http://www.texmed.org/Template.aspx?id=3868

 

[4] Bernard Black [Professor of Finance, University of Texas], Charles Silver [Law Professor, University of Texas], David A. Hyman [M.D. and J.D., Professor of Law and Medicine, University of Illinois], William M. Sage [M.D. and J.D., Professor of Law, Columbia University] “STABILITY, NOT CRISIS: MEDICAL MALPRACTICE CLAIM OUTCOMES IN TEXAS, 1988-2002” Journal of Empirical Legal Studies July 2005 (Volume 2, Issue 2, 207–259)

 

[5]  Fred J. Hellinger, Ph.D and William E. Encinosa, Ph.D., “Impact of State Laws Limiting Malpractice Awards on Geographic Distribution of Physicians” article published by United States Agency for Healthcare Research and Quality (AHRQ), earliest possible date 2003, http://www.ahrq.gov/research/tortcaps/tortcaps.htm

 

[6] MARK MCCLELLAN [MD, PH.D. ADMINISTRATOR CENTERS FOR MEDICARE & MEDICAID SERVICES], BEFORE THE JOINT ECONOMIC COMMITTEE HEARING ON MALPRACTICE LIABILITY REFORM, CMS Office of Legislation,

Thursday, April 28, 2005

http://www.cms.hhs.gov/media/press/testimony.asp?Counter=1434

 

[7] ”Liability Reform Coalition; Washington roundtable business executives endorse I-330 liability reform”, article written and published by the Health Insurance Week, page 66, August 28, 2005 [accessed via Lexis-Nexis]

 

[8] Content left out due to time constraints: “In cases of medical negligence, this component will discourage plaintiffs from suing multiple defendants in pursuit of a deep-pocket defendant, such as a hospital or clinic. Currently, in cases where the defendant is not at fault, the law holds a single party in a multi-party lawsuit jointly and severally liable for 100% of all damages. This is true even if the defendant (such as the hospital or doctor) were found to be only 1% at fault.”