A budding crisis was steamrolling toward a full-blown catastrophe in 2003.
Hospitals across Texas were turning away ambulances because of a critical shortage of doctors and nurses, as liability costs rose as much as 50 percent in a year.
Doctors had stopped taking emergency calls out of fear answering such a call would make them vulnerable to a career-threatening lawsuit.
Often patients had to be transferred to a distant hospital to get the care they needed. Meanwhile, family members had to get a leave from their job or stay in a hotel to see their hospitalized loved one.
Many pregnant women couldn’t get the prenatal care they needed. Meanwhile, doctors who couldn’t afford rising liability premiums found it prudent to close their practice. A tripling of her liability premiums forced Dr. Francis Mitchell to close her family practice, the only one in little Hidalgo, Texas, along the Mexican border.
“It was extremely painful,” recalls Dr. Mitchell. “There were grown men in my office in tears, who cried on my shoulder as I left. It was heartbreaking,” she said.
Dr. Mitchell’s exodus was hardly unique.
In his 18 years of practice, McAllen heart surgeon Norman Hetzler had never been sued. That changed a few years ago when he was hit with eight malpractice suits in rapid succession.
Seven of the eight patients who sued Dr. Hetzler did well after surgery, and all cases were either dropped or dismissed, which was hardly a consolation.
With his reputation in tatters and his malpractice premiums skyrocketing, Dr. Hetzler decided it was time to leave the Rio Grande Valley. He closed his practice and moved to Pennsylvania to open a cardiac care center.
When Denise Payne walked into an emergency room recently, the doctors wanted nothing to do with her. “They didn’t want to touch me because I was pregnant,” said the 38-year-old, who was six weeks along at the time.
Fearful of lawsuits, some doctors in Corpus Christi are shunning certain cases. Doctors are leaving town, screening their patients, and restricting their practices to reduce their risk of lawsuits. Pregnant women and children are particularly vulnerable, as some doctors avoid them when they get seriously ill.
DOCTORS’ PRACTICES IN PERIL
Dr. Hetzler’s dilemma, though more pronounced than most, was hardly unique. With medical liability lawsuits and awards on the rise, many doctors suddenly found their practice in peril.
A 2001 study by the Texas Medical Association revealed that six out of seven medical liability claims in Texas were closed with no fault found on the part of the doctor, meaning many of the suits lacked merit. Nonetheless, tens of millions of dollars were being spent fighting these cases.
The burgeoning malpractice crisis, coupled with slow pay by health insurers and reduced pay by Medicare and Medicaid, put doctors through the financial wringer.
Reportedly, more than two-thirds of Texas physicians dipped into their retirement funds, got a bank loan or took a cut in salary to keep their practice afloat.
Unbridled lawsuits turned entire regions of the state into high-risk areas to practice medicine. From the Gulf Coast to the border to North Texas, communities were having trouble attracting and retaining medical specialists. Patients were losing access to their doctor.
Data from the state medical board revealed that over two-thirds of the counties in Texas didn’t have a licensed obstetrician, more than half of the counties had no pediatrician, and nearly a third of the counties had no family physicians.
ACCESS TO CARE PROBLEM
Half of the nursing homes in the state had gone bare—unable to find liability coverage. It wasn’t that they didn’t want coverage; they just couldn’t afford it. These homes were just one unfortunate accident away from bankruptcy.
Faced with insurance rate hikes as high as 50 percent per year, many Texas hospitals found it impossible to maintain or expand services to meet their community’s needs. Likewise, many doctors began to steer clear of high-risk or life-saving procedures to minimize lawsuit concerns. Some doctors chose to quit practice altogether.
When doctors get sued at the drop of a hat, they become reluctant to practice medicine. Thanks to the large number of lawsuits resulting in huge verdicts, it’s becoming impossible for some doctors’ offices to stay in business. As the amount of jury awards goes up, so do doctors’ insurance premiums.
SUDDEN RISE IN AWARDS
Turbulence gave way to market panic in 1999 when there was a noticeable jump in large verdicts; especially those with excessive non-economic awards. In fact, in 1999, the average non-economic award in a Texas medical malpractice suit swelled to $1.3 million-- quadruple what it was a decade previous.
Suspect lawsuits continued to be a problem but the driving force behind skyrocketing malpractice premiums was the exponential rise in non-economic awards.
CATASTROPHE IN THE MAKING
The Texas medical liability system was a catastrophe in the making.
“Physicians are dramatically changing the way they practice medicine in the State of Texas and it’s affecting patient care,” said Dr. Craig Bonnen, a Houston neurosurgeon, speaking before a Texas Senate panel. “Most of the physicians where I practice medicine in Greenville are not doing nursing home work anymore. This is happening all over the state,” he said.
“Physicians are getting out of hospital work. This is happening all over the state. You’re losing continuity of care from the office to a hospital. Physicians are less likely to take what are considered risky cases,” said Dr. Bonnen. “They’re referring out more, which increases the cost of medicine. Most physicians can’t afford to even buy two hundred and fifty thousand dollars worth of malpractice insurance now…Many physicians are retiring early, or they’re not in a position to provide charity care.”
Critical shortages of both doctors and nurses were being reported across the state. The state medical board found that Texas ranked well below the national average of physicians per capita. No only were doctors leaving the practice of medicine, many were opting out of certain high-risk specialties.
When cardiologist Dr. Hector Urrutia was sued by enough patients to fill a 10-page list, he could find no evidence that he had treated all of them.
And when his lawyer examined the malpractice case against him and the McAllen Medical Center, Urrutia got another jolt. The medical expert hired to review the case was a local general practitioner who works out of her home, hasn’t had hospital privileges since 1997 and charges $500 an hour to testify for plaintiffs’ attorneys.
CARRIERS FLEE THE STATE
Between 1999 and 2002, thirteen of the state’s 17 physician liability carriers went out of business, left the state or began withdrawing from the market due to mounting losses. More than 6,000 Texas physicians were left scrambling to find liability coverage.
The crisis reached a well-publicized boiling point in April of 2002 when doctors in five Texas cities staged a one-day protest march to the steps of their local courthouse. Nearly 1,000 doctors, nurses and patients participated in the march in Edinburg, Texas.
Clearly, damages for such subjective harm as pain and suffering, emotional distress and loss of companionship had to be reined if doctors and patients were to get the relief they so desperately sought.
EMERGENCY DECLARATION
Within days of the protest marches, both the Governor and his challenger announced, if voted into office, they would make medical liability reform an emergency issue thus giving it fast-track priority status in the legislature.
Weeks of testimony in both the Texas House and Senate led to the passage of a comprehensive medical liability reform bill in 2003. Key elements of that legislation can be found on this web site under the heading “Texas Legislative Reforms”.
Texas lawmakers made great strides in quelling the crisis by passing:
• A non-economic damage cap
• Protections for emergency care,
• Allowing periodic payments for future damages, and
• Implementing sweeping expert witness reforms that have reduced lawsuit costs and the number of frivolous filings.
