Posted on 08/26/2003 1:38:00 PM PDT by hocndoc
Aug. 26, 2003, 11:59AM Valley at epicenter of debate on malpractice caps By JAMES PINKERTON
RESOURCES • Proposition No. 12: Concerns civil lawsuits against doctors and health care providers, and other actions, authorizing the Legislature to determine limitations on noneconomic damages. • Texans Against Prop 12 • Yes on 12 • Save Texas Courts • All propositions in Spanish • ElectionCentral.com
HIDALGO -- A tripling of Dr. Frances Mitchell's malpractice insurance premiums last September forced her to close her family practice, the only one in this small town on the banks of the Rio Grande.
"It was extremely painful," recalls Mitchell, who works at a health clinic in Mission. "There were grown men in my office in tears, who cried on my shoulder as I left. It was heartbreaking."
Today, Mitchell and most doctors practicing in the Rio Grande Valley are strong advocates of Proposition 12, a measure that they say will halt a barrage of malpractice suits and claims brought against them.
Proposition 12 is one of 22 proposed amendments to the Texas Constitution to be voted on Sept. 13, and its passage would remove a probable court challenge of the caps on medical malpractice awards the Legislature passed last session. The new law limits only noneconomic damages, such as pain and suffering, to a total of $750,000. The caps would not affect awards for medical expenses, lost wages or punitive damages.
"Proposition 12 is a really important issue because if it doesn't go through, I foresee disaster," said Mitchell, who gave the same warning to legislators during hearings on the caps. "I told them if they didn't do something about this, there was going to be a lot of Hidalgos all across the state."
And despite efforts to curb frivolous lawsuits and ambulance-chasing, the Valley has been unable to shake an unsavory reputation as a region where critics say unscrupulous lawyers engage in legal shakedowns of medical providers.
The rate of malpractice claims filed in the Valley is 211 percent above the statewide average, according to the state Insurance Department. And malpractice premiums for the Valley are the most expensive in the state -- and nearly the nation -- with a McAllen neurosurgeon paying $143,000 for full coverage while a colleague in Lubbock pays $67,818, according to the department.
"What you have is two elements at play," said Jon Opelt, executive director of the Houston-based Citizens Against Lawsuit Abuse. "The high number of meritless lawsuits, and the tremendously high damage awards that have caused insurance premiums to skyrocket for doctors, hospitals and nursing homes."
Opelt also cited "cozy" relationships between some Valley plaintiff attorneys and judges, including cases where judges have refused to dismiss lawsuits despite expert testimony that no malpractice occurred.
"We're talking about possibly inappropriate relationships between lawyers and judges," Opelt said. "On the other hand, there is a lot of trolling that takes place in the Valley in the form of advertisements and paid runners whose job it is to solicit cases for lawyers. And you hardly ever find a party charged and convicted of barratry (unlawful solicitation)."
Earlier this year, a federal jury did convict McAllen attorney W. Lassiter Holmes III of conspiring with the then-Hidalgo County district clerk to backdate a medical malpractice lawsuit and get by the statute of limitations.
And a 1999 class-action suit against McAllen Medical Center generated widespread controversy about legal tactics, as two competing plaintiff law firms raced to sign up thousands of heart surgery patients. The suit was based on allegations the hospital Web site misrepresented the qualifications of one of its cardiac surgeons, but defense attorneys showed some of the plaintiffs did not agree to sue their doctors.
State Sen. Eddie Lucio, D-Brownsville, said he supported caps to ensure there are adequate physicians along the Texas-Mexico border, a region chronically short of facilities and medical professionals.
"I want to have a doctor in a hospital I can go to when I need health care," said Lucio. "Unfortunately, some lawyers have turned medical liability suits into their own bread-and-butter income, soliciting patients who might have been harmed. When we consider that two out of every four physicians in Texas had a claim filed against them in 2000, I certainly think we have a crisis."
State Insurance Commissioner José Montemayor predicts the caps will drive down malpractice premiums, which he says are fueled in part by frivolous lawsuits.
"A large portion of the lawsuits brought against doctors seldom result in a payment -- something like 85 percent result in a zero payment. So they are a factor," he said.
Dr. Mitchell Hughston, a Harlingen obstetrician, ticks off the names of four close colleagues who closed their practices due to lawsuits and high premiums.
"Here, the big problem is so many companies have pulled out it is hard to find coverage," said Hughston, who has not had a claim since 1991 but saw his premium jump from $47,000 in 2001 to $80,000 in 2002.
He blames the situation on the mind-set of the legal community.
"If they sue for $1 million but will settle for $50,000, what does that tell you about the claim?" Hughston said.
The caps would trim huge awards such as the $59 million awarded to the parents of an Eagle Pass girl, severely brain-damaged because of malpractice by the doctor who delivered her. Only the $11 million in economic damages, to pay for caring for the girl the rest of her life and loss of future wages, and $750,000 in noneconomic damages would be awarded under the proposed caps, attorneys said.
"So they would have paid her medical bills, is that what's fair?" asked the girl's attorney, Mark Mueller of Austin. "There's nothing for what she has to go through. The point is the woman would have gotten nothing for her whole life being destroyed."
Limiting the awards for pain, suffering, disfigurement and loss of companionship, proponents say, will halt the "feeding frenzy" of money-hungry lawyers. These noneconomic damages havequadrupled in the past decade, according to a study of malpractice verdicts.
"Unfortunately, it's the potential for unlimited noneconomic damages that is driving a feeding frenzy of litigation against health care professionals, and the Valley is at the epicenter of this near catastrophe," said Ken Hoagland of the Houston-based Texans for Lawsuit Reform.
Hoagland said the legal system has become corrupted by a thirst for profits.
"The practice of civil law has changed in the last 25 years from a profession that sought to make victims whole, to one that increasingly seeks to maximize legal fees and profits," he said.
In 2001 and 2002, a total of 6,500 Texas doctors lost their coverage as more than a dozen insurers fled the state. And the state's largest malpractice provider -- a doctor-owned trust that insures a third of Texas doctors -- increased rates 147 percent between 1999 and 2003, according to the state Insurance Department.
Attorneys blame the malpractice insurance crisis on stock market losses suffered by insurance companies, but many others blame it on the lawyers.
"Even lawsuits without merit cost between $10,000 and $30,000 to defend," Hoagland said. "That money is coming out of medical malpractice premiums and is the reason 14 of the 17 insurers left Texas in the past 24 months."
But those opposing Proposition 12 reject predictions of lowered insurance rates for medical providers. And, they note the amendment's language allows the Legislature to limit damages in malpractice cases "and other actions," opening the door to caps in other types of civil cases.
"Proposition 12 is not about doctors, it's about `and other actions,' " said Dan Lambe, head of the Austin-based consumers group Texas Watch. "It's about giving politicians and special interests like the insurance industry -- who have too much power over the Legislature right now -- the ability to interfere with our constitutional rights."
Lambe pointed to a June review of malpractice rates conducted by Florida-based Weiss Ratings Inc. that reported doctors' median premiums rose 48 percent in 19 states that imposed caps on noneconomic damages, more than in states without caps. However, a February 2003 review by the Texas Department of Insurance showed premiums were higher in states, notably Texas and Florida, without caps.
Randy Whittington, a longtime Harlingen attorney, characterized the caps as "a travesty." He said insurance companies have long contended the problem is the cost of defending frivolous suits, which are not affected by caps.
"Do we have lawsuits filed in the Valley that shouldn't be filed? Sure we do," Whittington said, adding " ... my experience has been that generally our juries have been reasonable, and to some extent, conservative."
""A large portion of the lawsuits brought against doctors seldom result in a payment -- something like 85 percent result in a zero payment. So they are a factor," he said. ""
and
"""The rate of malpractice claims filed in the Valley is 211 percent above the statewide average, according to the state Insurance Department. And malpractice premiums for the Valley are the most expensive in the state -- and nearly the nation -- with a McAllen neurosurgeon paying $143,000 for full coverage while a colleague in Lubbock pays $67,818, according to the department.""
We had at least one teenager die last year, because there was no neurosurgeon on call at the Laredo ER. Hospitals can't qualify as "Trauma 1" centers if they can't sign up enough specialists to take call.
"Call" for an ER is the system where a doctor must be available, usually within 15 minutes to go to the hospital to see the patient. Most docs don't get paid for sticking close to the hospital. And, all too often, you don't get paid for the actual care, either. But, you are liable for malpractice suits if there is a "bad outcome," whether or not the outcome is your fault. I have a friend who is a radiologist who diagnosed a lethal complication by xray, as soon as he saw it, but was sued anyway, because the lawyers sue every doctor in sight when they sue.
The best thing that could happen is to make the lawyers pay legal fees for both sides when the courts rule against them, or when the lawsuit is dropped for lack of evidence. But, that's not part of Proposition 12. This amendment would support the Legislature's action to set limits on "pain and suffering" and "loss of consort" or "mental anquish" judgements to $250,000 per doctor and/or hosptital and limit the judgements to $750,000, total.
Proposition 12 will not affect the malpractice awards that are actually measureable, such as medical costs, lost wages, and even lawyer's fees. It will not affect punishment judgements, although I'll admit I don't understand that part, at all.
Proposition 12 will get rid of the emotional jackpot awards from which the lawyers skim 30% to 50%. (One idea was to limit the percentage that the lawyers could charge as contingency fees, but for some reason that didn't go through).
One objection of even some conservatives is the phrase, "and other actions." The complaint is that we will lose our right to have a jury decide punishment or that our legislators may be subject to corruption by the insurance agencies. (Senator Nixon is already under fire because an insurance company paid his claim for mold damages. The award sounds legitimate to me.)
Juries don't make the determination of punishment for criminal cases, they choose between punishments that have been set by the state legislature. The very definition of crimes and civil torts are made by the legislature. I don't see a problem with giving the legislature the power to set tort reform.
At least we have an input into who is in Austin, working on our behalf. Well, kinda.
You are not wrong. Voting "YES" on Prop 12 is a vote in FAVOR of liability caps.
The lawyers want no caps on the kind of money from healthcare that lands in their pockets. Vote "Yes" to 12.
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