Tort-Reform Folly

Back in 2003, 71-year-old Alvin Berry of Copperas Cove went to the doctor for a routine prostate screening. He was told his antigen levels were elevated, so his doctor referred him to a urologist for a follow-up. The urologist, however, told Berry not to worry. Seven months later, Berry's antigen levels had skyrocketed – he had developed prostate cancer, and it was too late, the cancer had already spread to his bones. He was given five years to live. Unfortunately, reports the consumer-advocacy group Texas Watch, in 2003 Berry had also voted in favor of Proposition 12 – the sweeping "tort reform" package that severely limited the ability of individuals to avail themselves of the legal process and to sue in cases of medical negligence (what tort reformers – read, insurance companies – prefer to call "frivolous lawsuits") – and with its passage, discovered that now he was left without the ability to seek legal redress for his doctor's deadly oversight. "We'd voted on something," Berry told Texas Monthly in 2005, "and we really didn't know what the facts were."

To hear Gov. Rick Perry tell it in his State of the State speech last week, the facts are that things in the land of tort reform are just peachy, thank you very much. Texas is "perched at the forefront of a new era of prosperity," he said. "Frivolous lawsuits are down, as are insurance rates for homeowners and doctors. Thanks to medical liability reforms, hospitals are once again able to recruit specialists whose expertise can mean the difference between life and death." Apparently, Perry wasn't talking to Alvin Berry.

According to a new Texas Watch report on the state of Texas' tort-reform measures, Perry's promises that frivolous lawsuits and high medical-malpractice insurance rates are down, and that the recruitment of specialists is on the rise, are just promises that haven't panned out. In fact, it appears that the opposite may in fact be true. Since passage of Prop. 12, malpractice insurance premiums remain inflated. Texas Watch Executive Director Alex Winslow notes that from 1999 to 2002, insurance premiums had ballooned as much as 145%. In the years since Prop. 12, premiums have come down, but only by about 13.5%, Winslow notes, meaning they're still artificially high. "Clearly," he says, "doctors are still paying too much for their med-mal premiums," and what "marginal reduction" there has been has had "little to do with Proposition 12" but have been part of a natural market adjustment – at least in part stemming from the outrageously high premiums charged in the preceding years.

And, contrary to Perry's reassurance, the number of counties without specialist doctors – and particularly those without access to an obstetrician – has actually increased since 2003. Currently, 156 counties – more than 60% of all Texas counties – do not have a licensed obstetrician. That bit of news is stunning, considering the emphasis tort reformers placed on access to obstetricians in their politicking for Prop. 12. "This is one of the most striking things we encountered" when preparing the report, Winslow said. "This was one of [the Prop. 12 supporters'] main talking points" – that out-of-control lawsuits, leading to out-of-control med-mal insurance rates, were at the heart of the obstetrician shortage. If that were true, Winslow says, we wouldn't be worse off today than we were before Prop. 12. At the heart of the problem, Winslow suspects, is that smaller counties with higher indigent populations and less up-to-date technology are hard-pressed to lure qualified specialists – including obstetricians. As such, instead of the sweeping tort-reform measures, it might have been wiser to concentrate resources on solving the indigent-health-care crisis – as it stands, 25% of Texas' population is uninsured, and prohibiting access to legal redress does nothing to change that. At press time, Perry spokesman Ted Royer wasn't available for comment.