The Tortellini

Tort Reform Brings More Doctors to Texas, But Only for Rich People

Cross-posted from MoJo Blog:

In 2003, Texas voters approved a ballot initiative known as Proposition 12 that helped radically restrict state residents' ability to sue doctors or nursing homes that killed or injured them. Insurance company lobbyists had claimed doctors were fleeing the state because of lawsuits and high malpractice insurance premiums, threatening access to care. Proposition 12 was supposed to fix all that. Not only would doctors rush to Texas for its friendly legal climate, but, supporters claimed, obstetricians would move en masse to the 152 poor, rural Texas counties that had no ob/gyn to deliver local babies. 

The New York Times recently declared Prop 12 a huge success because doctors (ob/gyns in particular) are supposedly flocking to Texas now that they don't have to worry about getting sued. One thing the Times didn't point out, though, was that the number of those new ob/gyns who've moved to rural, underserved Texas is exactly zero.

The Texas Observer this month crunched the numbers, and came to the not-so-startling conclusion that while there may be more doctors in Texas thanks to tort reform, virtually all of them moved into the state's richest suburbs, which were already well-stocked with highly paid specialists. As it turns out, doctors don't shun the Texas sticks because of lawsuits but because they'd just rather live closer to Starbucks and their golfing buddies.

When ethics violations are just another opportunity to raise money

Remember Nathan Hecht, the Texas Supreme Court justice who went on the media circuit to defend his old pal and former White House counsel, Harriet Miers? Well, he ran into a little trouble with the State Commission on Judicial Conduct last year for shooting his mouth off, and ran up a bunch of legal bills in the process. Rather than simply pay them the way normal people would, Hecht asked many of the lawyers who practice in his courtroom to pick up the tab, raising nearly $450,000 for a "legal defense fund." (Could his defense really have cost nearly half a million bucks??)

Today, Texas Watch released a study looking at how well those donors fared before Hecht in court after they chipped in to the defense fund. Not surprisingly, they came out looking pretty good--except for the plaintiffs' lawyers, who for some insane reason also anted up. Famed tobacco lawyer Wayne Reaud's law firm ponied up $5K, and then went on to lose an employment case. The decision was unsigned, so I guess it's possible that Hecht actually voted in Reaud's favor and just didn't want anyone to know about it! But I suspect not even lots of money could help Hecht overcome his distaste for big-shot trial lawyers and their sad-sack clients. After all, the tort reform group Texans for Lawsuit Reform has been one of his biggest supporters.

All Those Texas Doctors..

There's been lots of hullabaloo over the rush of doctors heading to Texas to open up shop, thanks to the state's draconian medical malpractice "reform" of 2003. That Texas residents have to rely solely on the Texas Medical Board to protect them from out-of-state butchers and drug-addicts looking for safe haven is rather frightening, given how poorly it's done the job in the past.

The medical board has a huge backlog of license applications waiting for background checks. The board's background checks aren't exactly rigorous, though, as the board relies almost solely on self-reporting by the docs. That's how Dr. Nilon Tallant ended up treating Texas lawmakers as a volunteer "doctor of the day" in the state capitol last month, even though he had pleaded guilty to a felony charge after having sex with a 17-year-old patient in 1996. Tallant was a registered sex offender who'd lost his medical license for a few years, but Texas state legislators honored him as an upstanding member of the community. You can watch the TV expose on Dr. Tallant here. As the consumer group Texas Watch observed, if state legislators can't avoid bad doctors, how can average consumers?

When Lightening Strikes

Haven't read it yet, but Texas Monthly has a story this month on Eva Rowe, the woman who fought the giant oil company BP in a lawsuit over its deadly Texas refinery explosion that killed both her parents. It's apparently not an entirely pretty portrait--a study in what happens to people who suddenly get too much money--but interesting nonetheless. (Subscription required..)

A citizens' movement without any citizens

I'm always amused at how tort reformers like to come up with names for their front groups that suggest that theirs is a broad, "grassroots" citizen-based movement representing people from all walks of life who are just fed up with "lawsuit abuse." There's Citizens Against Lawsuit Abuse, Texans for Lawsuit Reform (TLR), Texans for Texas, etc. (Texas has a bumper-crop of these.) None of them ever has any real "citizens" in them, the way that most nonprofit consumer groups do. Bill Summers, who runs the Rio Grande Valley CALA group in Weslaco once told me that his group used to be a nonprofit until some horrible trial lawyers sued the group to find out who its donors were, so they converted it into a wholly-owned subsidiary of the Weslaco Chamber of Commerce.

The latest evidence of the lack of average "citizens" in the tort reform movement comes from TLR, the powerhouse Texas tort reform group that helped put George W. Bush in the White House. In the 2006 elections, according to Texans for Public Justice, TLR's political action committee, which raised nearly $4 million for state elections last year, got 60 percent of its money from just eight rich guys. Topping the list was Swiftboat Veterans for Truth funder and homebuilding magnate Bob Perry. Hardly the sign of a populist revolt in the making...

Maybe trial lawyers need to dig a little deeper

While I was perusing the ever-entertaining website of Texans for Lawsuit Reform, I noticed that they had circulated an outraged press release back in November complaining that the local campaign finance watchdog group, Texans for Public Justice, was "funded by trial lawyers." TLR apparently got TPJ's tax filings and discovered the shocking news that three big plaintiffs law firms had given the group a grand total of $50,000, which constituted more than a third of its budget.

I wasn't especially surprised to find trial lawyers among TPJ's donors, given the paucity of other sources of funding for progressive politics in Texas. What did suprise me, though, was that TPJ's budget was so tiny! The whole shop runs on $160,000 a year. That's barely enough to keep the lights on and the web site up. By comparison, the tort reform group, which got $15,000 in seed money from the tobacco industry, has a PAC that spent more than $3 million in the last election. It's really a credit to TPJ's clearly underpaid staffers that it has made such an impact on the Texas political scene with the budget of an ankle-biter.

Of toenails and tort reform

Texans for Lawsuit Reform has found a novel way of converting lawmakers to their cause: free pedicures. What I find really amazing isn't the lure of free beauty treatments, but the fact that TLR has anything left to lobby for!

The Sizzler: One ride that's not so amusing..

Sorry for the blog neglect of late. Occasionally I have to do work that pays the bills, and unfortunately, blogging for Google ads just doesn't do it! To catch up, today I've got several items that have been sitting on my desk for a while, but seem interesting if not so timely at this point...

The first comes via law prof and amusement park safety expert Bill Childs. He wrote an interesting post last week on his TortsProf blog about "The Sizzler," an amusement park ride that has killed an injured some kids, including a 9-year-old in Texas who was thrown from the ride. While there's plenty of evidence to suggest that the ride is defective (particularly the restraints that should have kept the girl in her seat), the people of Texas won't be able to sue over any associated injuries, Childs writes, because the 2003 tort reform law there creates a 15-year statue of repose. So even though the Sizzler is in active use in many places, it is at least 15 years old, and thus its owners and operators are largely immune from lawsuits. Childs writes

there are dozens or hundreds of Sizzlers in operation (it is, I have read, the most popular carnival ride in existence), with the same restraint system.  But due solely to its age, its manufacturer is immune from suit, and the operators will generally be effectively immune from suit.  Where's the appropriate deterrence and motivation to (for instance) urge ride owners to update the restraints?

Texas: Bad doctor magnet?

In 2003, the state of Texas instituted a $250,000 cap on noneconomic damages in medical malpractice suits, and made it more difficult for patients to sue doctors, hospitals and nursing homes. At the same time, the state legislature abolished the Office of Patient Protection. I have long suspected that the law could make Texas a magnet for dangerous doctors looking to fly below the radar screen of the legal system. Well, I didn't have to look far for confirmation of that theory. The nonprofit group Texas Watch recently discovered that the Texas Medical Board has granted a temporary medical license to an ob/gyn who had her license suspended in two states and who was the subject of numerous malpractice suits.

The Washington Post reported in 2005 that the Duke Medical Center in North Carolina had fired Dr. Pamela L. Johnson because of high surgical complication rates. In New Mexico, she was sued by a man whose  wife bled to death after Johnson delivered their son. Despite the Post story, which noted that the woman had applied for a license in Texas, the state medical board has decided to give Johnson a license (with a few restrictions). I guess the board members don't have to worry that they'll end up in her care. But look out women of Texas! Ob/gyns like these make cab drivers seem like a viable alternative...

Bummer about the BP trial

I wish Eva Rowe had stuck to her guns and gone to trial in her lawsuit against the petroleum giant BP.  Rowe, 22, had sued BP after its 2005 refinery explosion in Texas City, Texas killed not just one but both of her parents. Rowe's was the last of 15 wrongful death suits against the company stemming from the explosion, and she had refused to settle, saying she wanted the public to see all of BP's dirty laundry. The trial was scheduled to begin next week.

Instead, Rowe settled yesterday when BP agreed to donate as much as $60 million to an array of charities and safety research programs. Seems like a good settlement, so it's hard to really complain, but I was looking forward to watching the trial. The United Steel Workers union had arranged to broadcast it live through a special website that would have also posted key trial documents and other evidence. The case would have provided a rare opportunity for the public to watch a major civil trial in action rather than hear only the dollar amount of the verdict at the end. 

It would be interesting to know if the TV cameras had anything to do with BP's decision to settle the case on terms Rowe could live with...

More on those lawsuit-free Texas hospitals

Over at TortDeform, UT law prof Charles Silver has an interesting post about the impact of the 2003 cap on medical malpractice lawsuit awards in Texas, where hospitals have seen an extraordinary decline in the number of patients' lawsuits. He writes:

The 2005 Annual Report of the Medical Liability Benefit Plan for the University of Texas System describes the recent history of medical malpractice lawsuits against all U.T. health care institutions. From 2002 to 2005, new lawsuits fell 55%, from 60 to 27. New claims fell 36%, from 163 to 105. Open claims and lawsuits fell 28%, from 354 to 256. All three drops would be even bigger if one used 2003 as the base year.

Proponents of the malpractice cap always claimed that it would only limit "frivolous claims," but it's clear from these numbers that the law is simply limiting most claims. One thing's for sure: the drop in lawsuits didn't come because the hospitals suddenly got so much safer. In fact, you have to wonder if all the doctors who are supposedly flocking to the state (a claim Silver disputes) because of the malpractice law are exactly the sorts of people you wouldn't want operating on you. It's entirely possible that the new Texas law has made the state a magnet for bad doctors who fear getting sued a lot in states with stiffer malpractice laws.