Sunday, March 10, 2013

Ten Years Later: The Promises and Predictions of Prop. 12 Have Come True

By Jon Opelt

Ten years ago, Texas voters approved Proposition 12, a constitutional amendment that affirmed the Legislature’s authority to set damage caps in health care lawsuits.

Supporters and opponents spent more than $17 million in making Proposition 12 the most expensive constitutional campaign ever.

Both sides made a number of promises and predictions as to what would happen if the measure prevailed. Ten years later the results are in: The healthy benefits that reformers had predicted have come to pass, while the allegations and dire prophecies of the trial lawyers have proven to be wrong.

Prior to the passage of Proposition 12, doctors were leaving or limiting their practice due to soaring liability costs. Roughly 20% of the state’s physicians had been non-renewed by their insurance carriers and were in jeopardy of losing hospital privileges. Many doctors who still maintained liability coverage refused to accept patients with complex or high-risk problems, referring them to an increasingly shrinking pool of specialists. Emergency room services for head injuries, childbirth and trauma involving small children were in shorter supply. All blamed the state’s hostile medical liability climate.

Tort reform advocates made the following promise:

  • Doctors would start taking ER call again. They have.
  • More high-risk specialists would be available to the public. They are.
  • We would be able to recruit much-needed specialists to our state, particularly in rural Texas. We have.

In the run-up to reform, 55 Texas counties saw a net loss of physicians and another 50 failed to add a single physician. Some 99 counties lost a high-risk specialist and an estimated 5,000 high-risk specialists restricted their practice due to liability concerns.

Since 2003, the ranks of high-risk specialists have grown twice as fast as the state’s population.

  • The number of rural obstetricians has grown nearly three times faster than the state’s rural population. 
  • Forty-six counties that did not have an emergency medicine physician now do. Thirty-nine of those counties are rural.

During the crisis years Texas fell to 41st nationally in patient care physicians per capita. From 2006 forward, the state has climbed into a tie for 24th. That is an incredible accomplishment given our meteoric growth in population.

At the passage of Prop. 12, doctors, hospitals and nursing homes were paying exorbitant liability insurance rates. Proponents argued that rate relief was desperately needed, but those premium reductions would not occur until and unless the damage cap was ruled constitutional. The trial lawyers countered that lawsuit reforms don’t produce liability savings and that Texas doctors would never see their rates reduced. Roughly 30 rate cuts and more than $2 billion in liability savings later, the trial lawyers are wrong. Most Texas doctors have seen their liability rates cut in half.

The Beaumont Enterprise put it succinctly: “Any doubter should ask where he thinks malpractice rates would be if voters hadn’t restored some sanity to the system.”

These liability savings are being used to help patients. Monies that used to go to lawyers and lawsuits are now being reinvested in patient safety, new technologies, electronic medical records and expanded charity care.

In 2003, during the same legislative session that medical liability reforms were passed, the legislature gave more money, staff and clout to the medical board to investigate and punish bad practice. Today, unethical, incompetent and addicted doctors are being identified, retrained or rooted out due to the aggressive actions of a beefed up medical board. The net result: the public is better protected than ever by a system that doesn’t reward bounty-seeking personal injury lawyers. Despite these strengthened patient protections, trial-lawyer funded groups have continued their efforts to weaken the medical board’s disciplinary power.

Critics claimed if voters passed Prop. 12, lawmakers would quickly move to expand cap protections to drunk drivers and industrial polluters. Four legislative sessions later, that has not occurred nor has anyone even filed such a bill.

Perhaps the most flawed argument against imposing a cap was levied by so-called “consumer groups” Public Citizen, Consumers Union and Texas Watch who in March of 2003 jointly released a study contending that capping on pain-and-suffering-type awards would have little effect in lowering premiums.

They were totally, completely and undeniably wrong. While medical and economic damages remain unlimited, 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 this state.

Jon Opelt is the Executive Director of Texas Alliance For Patient Access, a statewide healthcare coalition that lobbied for the passage and preservation of Texas’ landmark medical lawsuit reforms.

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