Carlos Guerra

Carlos Guerra: Medical malpractice and tort reform debate is still young (April 2003).

No one expected the 78th Legislature to be like recent ones, but most focused only on Republicans controlling both chambers.

During the House's deliberation of what some called a "tort reform" and others a "medical malpractice" bill, a more glaring difference emerged. At least in the House, big business interests - and especially big insurance - are wielding unprecedented clout, and not with a lot of finesse.

During the two weeks HB4 tied up the House, proponents made no bones about lobbyists writing it, evaluating amendments, crafting floor strategy, prepping floor leaders and guiding it to passage.
It wasn't a debate, really. Opponents' questions were answered with silence, and when amendments were introduced, the silent majority voted no in lock step.

Once approved, this majority, and barely enough opponents, voted to put the constitutional amendment on the ballot, but in a special September election instead of the usual November date when more voters show up to cast ballots.

Reggie James, director of the Southwest Regional Office of Consumers Union, said: "I can't think of a single good thing in (HB4)."

The measure started out as a bill aimed at the mythical proliferation of frivolous lawsuits said to be driving up insurance premiums. But along the way, a bill that supposedly addressed skyrocketing medical malpractice premiums was rolled into the measure.

From the House committee system's sausage grinder emerged a measure that comes perilously close to eliminating state courts as venues for consumers to seek redress for being hurt or cheated. It seriously tips the balance against consumers and for insurance companies.

And after all the hype, scour the bill's many pages of text and not only will you not find "frivolous" or any of its synonyms mentioned, nor will you find any provision requiring insurance companies to lower malpractice premiums.

One reason for the absence of a premium-reducing mandate may be found in an analysis of state insurance data conducted by Public Citizen, a pro-consumer group. They found that while economic damages (for lost income and medical care) awarded in medical malpractice suits rose to $315 million in 1999 from $88 million in 1988, non-economic damages (for pain and suffering) remained between $55 million and $85 million during that same period. The House-approved bill would cap non-economic awards at $250,000, which James said "wouldn't significantly affect malpractice awards and would not resolve the liability crisis."

During the same period, insurance firms' investment portfolios dropped precipitously in values, suggesting that higher premiums are making up stock losses.

"If you want to lower (malpractice insurance) rates," he said, "you have to address malpractice itself and insurance reforms."

Since 1988, only 6.5 percent of Texas doctors have been responsible for 51.3 percent of malpractice awards, with each logging up two or more $1 million-plus payouts.

"And you have to address how insurance works," he added. "In Texas, when the economy is flying high, a bunch of firms come in and write policies because medical malpractice is great for cash flow. But when the economy goes bad, they're nowhere to be found, so the other insurers are left holding the bag and they have to raise rates."

Stay tuned for more.

(Reprinted with permission from Carlos Guerra, columnist, San Antonio Express-News. This column appeared on April 8, 2003.)