New Study Crushes Key Claim in Federal Medmal Debate

It's an article of faith among those who propose federal limits on awards in medical malpractice lawsuits. They always proclaim that the Texas state law limiting such awards resulted in thousands of doctors moving to the state. Examples:

"This last year, 21,000 more physicians practicing medicine in Texas because they know they can do what they love and not be sued." Texas Gov. Rick Perry, August 17, 2011.

"That's why some states, including my home state of Texas, have enacted tort reform to limit the amount of damages that can be awarded for pain and suffering. The result? More than 14,000 doctors have returned to Texas or set up new practices in the state." Rep. Lamar Smith, chairman of the House Judiciary Committee, March ....

"Because Texas adopted comprehensive reform in 2003, it now has more obstetricians and emergency physicians and lower medical liability premiums." Rep. Fred Upton, chairman of the House Energy & Commerce Commit...

BUT a new study crushes that claim and endangers one of the key pieces of empirical proof cited over and over again by proponents of unconstitutional federal medical malpractice limits and broader tort reform bills. The study, "Does Tort Reform Affect Physician Supply? Evidence from Texas," concludes that, "After tort reform was enacted, proponents claimed there had been a dramatic increase in physicians moving to Texas due to the improved liability climate. We find no evidence to support either claim. Physician supply was not measurably stunted prior to reform, and did not measurably improve after reform. This is true whether one looks at all patient care physicians in Texas or at high-malpractice-risk specialties."

The authors continue: "There is no evidence that the number of physicians per capita practicing in Texas is larger than it would have been without tort reform. Any effect of tort reform is too small for us to measure, against the background of other, larger forces affecting physician supply, both in Texas and nationally."

The study is so powerful in its presentation of data that Ted Frank, longtime critic of the plaintiffs' bar, concluded that, "I, for one, am going to stop claiming that Texas tort reform increased doctor supply without better data demonstrating that. More study is needed to explain Black/Hyman/Silver's counterintuitive result, and partisans on both sides need to be more conservative with their policy claims." Good enough for me.

This is an enormous break in the tort reform paradigm. It's as important on the empirical side as the legal statements against federal tort reform by libertarians and conservatives such as Randy Barnett, Sens. Tom Coburn and Mike Lee, Rob Natelson, and Tea Party leaders such as Judson Phillips. Just getting to "no clear evidence in the data" strips Big Medicine and its allies of an important rhetorical device in their pursuit of unconstitutional special interest legislation. Now, not only can they not cite any current conservative scholar in favor of H.R. 5, they can't honestly use the "More Docs in Texas" claim.

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Comment by Kristin Fecteau on May 10, 2012 at 8:31am
Sorry Goodbusiness, you assume facts not in evidence. I attended Regent University for law school. Pat Robertson's school. The most conservative law school in America, I dare say. Go take your assumptions somewhere else. You know what happens when you ASSuME something....
Comment by Rich Knoch on May 9, 2012 at 10:49am

Kristin . . . obamacare will eliminate lawsuits (the ultimate Tort Reform) for health care as the government will determine what health services are permitted and the patient will have no recourse if/when they are ripped off.  

Health care providers will leave the industry when pointy-headed bureaucrats (Death Panels) are inserted between the doctor and his/her patient.

Is this the world we want to live in?

Comment by Kristin Fecteau on May 9, 2012 at 9:42am

Goodbusiness, quit acting like a liberal. NO I don't believe courts are just to redistribute wealth.What a stupid comment, and yes I am a lawyer, and I know the purpose of courts far better than you. Lawyers to MANY things other than just sue people, DUH! We protect people from those who sue too, DUH! I spent many years as a defense lawyer. Don't think I don't know about stupid lawsuits, and better your bottom dollar my clients were thrilled to have a lawyer to PROTECT them from other lawyers. So get off your high horse and quit insulting people and an entire profession because you are bitter and ill informed.

Comment by Larry W. Emory on May 8, 2012 at 6:28pm

Why should a person who has been injured due "punitive damges" anyway?  It only makes sense that a person who has been wrongfully injured be made whole.  Nobody argues that.  But why should someone be awarded huge punitive settlements?  That is nothing but a kind of jackpot winning that frequently depends on the luck of the jury draw, the skill of the ambulance chaser, a sympathetic judge and many other variables.  Punitive damages are nothing but a crazy lottery with some big winners(lawyers) and many losers.  Why should a jury be empowered to "punish" someone in a purely subjective manner?  Is natonal tort reform constitutional?  I don't know.  It certainly sounds so more than state run health care, or the many other things the feds have their overly long proboscis inserted into.  Personally I don't want the feds involved in anything more than national defense,  and other constitutionally defined duties. 

Cetainly the supply of doctors is dependent on many factors.  Common sense says lawsuits are one of them. 

As far a a study that crushes the claim;  figures never lie, but liars do figure. 

Remember my homeboy John Edwards:  nuff said.


Comment by Rich Knoch on May 8, 2012 at 3:54pm

The numbers you quote from the study are not in accordance with a couple of graphs which show the affect Tort Reform had to significantly reduce Tort Claim Payouts and Medical License Applied for and Granted.  Reference charts in reference document.  The referenced study seems to show the physician growth (in the period studied didn't grow as fast as the population grew.
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2047433      (Charts on Pages 6, 12, 15)

The chart on Page 15 shows increases in Physicians per 100,000 population but your references does not take into consideration the rapid population growth due to many companies re-locating to Texas, (fleeing high taxes in California, etc.) increasing the population and depressing the affect of the numbers of physicians per 100,000 population.  The study, if done in 2015 (or so) will show Medical Professionals have increased with the population increase (which will catch up in later studies . . . . if not retarded by obamacare).  

Either way you look at the affects of Tort Reform, it does (1) reduce medical tort claim payouts, which, (2) reduce medical costs, which will, (3) reduce medical insurance costs.  All these are proposed goals of the monstrosity called obamacare, which we are finding out will increase costs and reduce health care availability.  

obamacare will reduce the supply of medical professionals as they leave the profession due to its heavy-handed use of bureaucrats, thrust between patient and doctor(s), seemingly designed to preclude the Hippocratic Oath.

obamacare will inherently limit health care via Death Panels use of algorithms to determine health care, obviating our current doctor/patient relationship.

Comment by Kristin Fecteau on May 8, 2012 at 2:22pm

USARogue, that is why you hire expert witnesses. They testify as to the standard of care and the causation of the injury. THEY help the jury understand the technical aspects of the case. The jury is then to decide based on the facts they have heard, the law they are instructed with, and the testimony of the doctors.

Comment by Roc29 on May 8, 2012 at 2:18pm


Are you saying that there is no problem with Medmal or are you saying that you recognize the problem but that the Texas solution doesn't solve the problem? If you say that there is no problem, continued discussion is fruitless because you are either extremely biased or uninformed. If you are merely criticizing the Texas attempt at solving the problem, then propose something that you think will solve the problem.

At least Texas is addressing the problem. If more states would do so maybe we could find, not a perfect solution, but a better way to deal with Medmal. Clearly the status quo is not acceptable.

If we're holding out for perfection, remember: The quest for perfection is the enemy of the good.

Comment by USARogue on May 8, 2012 at 2:14pm

As a side note.

Why, in the case of a medical malpractoice lawsuit, are no physiscians allowed on the jury. If the law offers the defendant a jury of his "peers" why aren't any of them true "peers"? I'm not saying the whole jury should be physicians, but a few to help the rest of the jury understand some of the technical aspects of the case.

Comment by Kristin Fecteau on May 8, 2012 at 2:06pm

Mr. Goodbusiness,

Actually medical malpractice lawsuits DO take butchers out the practice. And it has increased things like providing informed consent to patients so they are fully informed of all risks before undergoing a procedure. And if you had so many surgeries due to errors, why didn't you sue? Would you walk away if someone ran a red light and hurt you so badly? of course not! Why should you suffer pain, loss of work, and medical bills due to someone else not meeting a basic standard of care? If they did meet the standard of care, they weren't negligent. So I am not sure what you are talking about.

And actually accountants and dentists and numerous other professionals do have "practices." What does that have to do with anything?

Comment by Debrajoe Smith-Beatty on May 8, 2012 at 1:56pm

Thanks for the information.

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