April 24, 2004
There's your tort "reform"

This would be funny if it weren't so utterly pathetic.

House lawmakers sent a stern message to insurance companies Thursday: Medical malpractice lawsuit reforms passed last year were meant to help doctors -- not boost profits.

Republicans and Democrats who supported the legislation suggested that lawmakers might consider mandatory rate rollbacks if doctors don't get significant rate relief soon.

Lawmakers nearly approved a rate rollback last year but stopped short when insurance companies promised reductions.

"Some of us put ourselves way out on the line for our doctors," said Rep. Joe Nixon, R-Houston, author of the bill and the constitutional amendment that allows a cap on jury awards and limits insurance companies' liability.

"Profits for (the companies) is not what we intended."

Imagine that. The Lege passed a law that reduced the costs of a bunch of profit-maximizing firms, and they had the gall to go and use it to maximize their profits. Maybe next time, the legislation ought to match the intent, you know?

This is even more precious.

The House Civil Practices Committee on Thursday heard updates on the fallout from a sweeping lawsuit reform bill enacted after a bitter legislative struggle last year.


At the hearing, [State Rep. Patrick] Rose sharply challenged [State Insurnce Commissioner Jose] Montemayor over a letter the commissioner wrote to the committee in March 2003, when emotions over the reforms were approaching white heat.

Montemayor wrote that if the reforms were enacted, "this would translate to a 17 percent to 19 percent reduction in rates."

Montemayor's projections were cited by many lawmakers and reform supporters, especially during the campaign that persuaded voters to approve damage-award caps.

But Montemayor testified Thursday that his letter was not meant to promise that rates actually would go down by that or any amount. The numbers were theoretical and did not allow for a surge in malpractice lawsuits filed before the new laws took effect, Montemayor said.

Yo, Jose: The "bad intelligence" defense works best if you aren't the actual source of that intelligence. You said rates would go down. They haven't. Maybe they will eventually - and "eventually", I remind you, is not what you promised - and maybe if they do this ridiculous piece of legislation will be partly responsible for it. But the bottom line is, you were wrong. Now admit it.

And the reason you were wrong is because the case for tort "reform" is a myth. Instead of getting tough on the small minority of doctors who are responsible for a disproportionate amount of med-mal cases, instead of working to make the free market of doctors more efficient, Republicans pushed for a new artificial hindrance on that free market, and are shocked to find that it has had an unintended (albeit not unforeseeable) consequence. Best of all, to compensate for that unintended consequence, they're talking about enacting price controls. The irony is just killing me.

Posted by Charles Kuffner on April 24, 2004 to Legal matters | TrackBack

I don't believe the legislature was ever concerned about rates. I think all this shouting is done with crossed fingers and winked eyes. The insurance industry never intended to drop the rates and the legislature was never really working to help doctors. If anyone cared about doctors they would encourage more than two malpractice carriers to set up shop in the state.

Doctors got in bed between the legislature and the insurance industry and now they are just going to have to lay there. Of course what is happening to the public and lawyers isn't pretty, either.

Remember I am about to graduate from law school...

Posted by: Jaye on April 24, 2004 3:17 PM

The Texas implementation of tort reform screwed the pooch. If the insurers want it that badly, let them endorse a bill that promises rate rollbacks in conjunction with tort reform. If it's as big a problem as they say it is, they would agree to it quickly. If malpractice awards add 20% to their costs, for example, surely they'd be happy to get rid of that in exchange for a promise of a 10-15% rate rollback?

I think we can and should find ways to make plaintiffs of frivolous suits (and their attorneys) pay for the costs of those ridiculous lawsuits. But across-the-board limits are the wrong way to go, as they clearly impact the legitimate suits, too. If I walked around for 18 months with a scalpel in my abdomen, as in the recent case from Australia, and for many months the hospital merely told me to suck it up and that the pain was "normal" after a surgery like that, you're darn right I think they are more than $250,000 liable. That would be an injustice which could happen under Prop 12. Hence the screwed pooch.

I do support responsible tort reform done right, and it needs to come with some guarantees from insurers. I don't trust them to do what's right after receiving relief any more than I trust the subset of trial lawyers who clog the system with frivolity.

The problem is that Republicans are in bed with the HMOs, large hospitals and malpractice insurers, Democrats are in bed with trial lawyers, and no one is in bed with individual doctors and patients.

Posted by: Tim on April 24, 2004 5:12 PM

So the doctor says,"The bad news is we cut off the wrong leg, but the good news is the other leg is getting better."

Doctors want lower rates. The insurance companies wants higher rates. The public wants lower doctor bills and lower insurance rates.

The insurance companies won. The doctors lost. The public lost.

Republicans crafted the legislation for the insurance companies.

Simple enough?

Posted by: deejaay on April 24, 2004 7:29 PM

The insurance companies won. The doctors lost. The public lost.

Republicans crafted the legislation for the insurance companies.

Simple enough?

No. TOO simplified and too knee-jerk partisan.

Doctors and patients can still lose even if trial lawyers win. So the Common Cause [tm] isn't necessarily served by Democrats winning. A legal system controlled by trial lawyers is no better than one controlled by insurance companies and HMOs, for the 95+% of people who are never faced with a lawsuit or have need to file one pay higher costs.

Have I mentioned lately that knee-jerk partisan politics suck?

Posted by: Tim on April 24, 2004 8:56 PM

Tim the Troll....
Facts really are irrelevent to jerking knees...or even just jerkoffs...

Posted by: Sargent Ripper on April 24, 2004 10:04 PM

Tim, if the trial lawyers win, then the sytem reverts to having the courts review each case and provide equitable relief. That is generally fair, but complicated.

If the Insurance companies win, then the Republicans get more money and more power and the people who should get equitable relief for medical malpractice automatically lose in all cases.

Since the Republicans see a pot of money in either the insurance companies or the doctors, they will identify a problem which for the most part there is no evidence of and use it to scare some of those people to shake loose with a bit of their money. Then the Republicans provide an overly simplistic bumpersticker solution to the made up problem, and are shocked - absolutely shocked - that it doesn't solve the thing. So they go back out and shake loose some more money from the insurance companies as the people who are damaged by tort reform try to get it corrected.

Republicans win all 'round. As designed when they initially created the "Tort Reform Lies" in the first place.

Except for the Republican Party politicians, everyone else in the mess has been dragged in to defend themselves from even worse problems that would occur if the Republicans had their way.

Posted by: Rick B on April 24, 2004 11:42 PM

Tim is a Republican.

Simple enough?

Posted by: deejaay on April 25, 2004 11:22 AM

This is a pretty naive conversation.

The Republcians are out to cut the jugular of the trial lawyers game because trial lawyers are an important source of financial contributions to Democrats.

Insurance companies and doctors tend to contribute to Republicans.

Any concern for patience by either side is pure sophistry.

Posted by: Russell Sadler on April 25, 2004 12:59 PM

Sorry -- patients

Posted by: Russell Sadler on April 25, 2004 1:01 PM

Folks, Tim has been commenting here for a long time. He's not a troll, and name calling is not an appropriate response. Please note my comment policy. Thanks.

Posted by: Charles Kuffner on April 25, 2004 1:23 PM

Thanks for that, but truth be told, I'm enjoying some of the knee-jerk reactions.

And it goes to prove my point about knee-jerk partisan politics. I think it's pretty obvious -- given my comments about Republicans being in bed with insurance companies and HMOs and about my opposition to Prop 12 should indicate that there's a good chance I'm *not* Republican. Add to that my opinion on the budget deficit, Patriot Act and lack of WMD in Iraq, and I think you could very safely say I'm most definitely *not* a Republican.

But to some people, if you're not with them 100% politically, I guess that think you're against them. Hence, you see one qualified disagreement with a typically Democratic position, or with a traditional Democratic constituency, and you must be a Republican -- just watch the knees begin to jerk. Such impeccable logic! That's what devotion to party over ideas and individual thought brings, I think. It's fine and good to belong to a party, but IMO it shouldn't be used as a substitute for independent thought and forming your own ideas and opinions.

Call me a troll all you want. But call me Republican, and them's fighting words! And for what it's worth, if anyone really cares, I'm a libertarian-leaning independent, and proud of it.

Posted by: Tim on April 25, 2004 5:06 PM

A legal system controlled by trial lawyers is no better than one controlled by insurance companies and HMOs, for the 95+% of people who are never faced with a lawsuit or have need to file one pay higher costs.

What higher costs are you talking about? All the research makes clear that jury verdicts in malpractice cases have zero effect on insurance rates.

Posted by: DavidNYC on April 25, 2004 10:41 PM

I was in the extremely small minority — maybe its only member — who supported the Prop 12 amendment to the Texas constitution last fall on separation of powers, rather than tort reform, grounds. What almost no one during that PR campaign discussed was that the reason a constitutional amendment was needed was that the mid-1980s Texas Supreme Court — a far, far different body than today's — had stripped from the Legislature the power to enact caps of any sort on noneconomic damages through an absolutely bogus interpretation of the state constitution's "open courts" provision. Prop 12 undid what had been, in effect, a raw power grab by the "Sixty Minutes" Texas Supreme Court for the direct benefit of the plaintiffs' personal injury bar.

(Footnote — I don't use the term "trial lawyers" as shorthand for the plaintiffs' personal injury bar, and sorta resent it. I've been a "trial lawyer" — meaning a lawyer who actually tries cases, rather than just filing motions and "litigating" and settling — for 24 years, but that's been on both the plaintiffs' and defendants' side of the PI bar and on both sides in commercial litigation as well. Not all members of the plaintiffs' personal injury bar are real "trial lawyers," and certainly not all real "trial lawyers" are plaintiffs' PI lawyers!)

Having seen the Legislature's proper policy-making and policy-implementing powers returned to it by Prop 12, however, I'm far from convinced that the accompanying tort reform legislation (as opposed to Prop 12, which merely made that legislation not "unconstitutional") was a good idea.

It's still probably too soon to tell whether in the long or even the medium run, that tort reform will actually address the genuine problems that were used to justify it. One year certainly isn't enough time for competitive forces to show up. The insurance industry is far from the monolith it's often painted as; it's way too disorganized to run an effective conspiracy. I'm reminded of testimony former State Commissioner of Insurance Lyndon Olsen gave in Jim Mattox' lawsuit some years ago alleging such an anti-competitive conspiracy, which was to the effect of, "Conspire to restrain competition? Why, this industry would devour its own children and compete themselves all into insolvency if we didn't regulate it!"

Regardless, however, I continue to believe that it's the Legislature's proper job to experiment with ways to try to solve those problems. If one set of solutions doesn't work, they should scrap those and try something else.

Posted by: Beldar on April 27, 2004 12:39 AM

All this politisizing must make muscles flex and heads bow. My mother died just before Christmas because some fool dr. prescribed a med that induced a stroke that ultimately took her life. "Merry Christmas, your mother is dead." Due to Tort Reform I am screwed of seeking any justice in her name. I don't want to get rich, I just want the son of a gun punished and the public alerted to his 'talent.' All the rhetoric in the world won't bring her back. Good for improved medicine for the public?? huh. The youngest and the oldest in our society are now vulnerable. Hope your kids stay healthy guys! If not, may your aim be true and your feet swift! As that's the only justice you'll find.

Posted by: Andrea on May 7, 2004 10:46 PM

I think the real issue here is about honesty. The bush administration makes me feel as if I am being sold something all the time. Maybe there is a problem and maybe there isn't. Just take a look at the issues today that we constantly hear about on the news and in the media: Iraq, Social Security, and Tort Reform. Because there were no WMD found in Iraq and Iraq was shown to not have directly influenced 9/11 in the commission's report, it seems like the reasons for war after the fact have changed. Take social security...most studies show it is solvent for another 20-30 years and yet the Bush agenda to privatize part of it would make one think we are in horrible danger of bankruptcy next year. Lastly...Tort reform. The information I have heard indicates that frivolous law suits have a 5-8% impact on the cost of medicine. If you listen to bush's sales pitch, you'd think that the only reason 40 million people in the richest country on earth have NO HEALTH INSURANCE is b/c of this 5-8% cost of insuring people. So essentially we are being sold that all people have to be limited by the federal government b/c health insurance costs from illegitimate lawsuits are reeking havoc.

Posted by: matt on January 20, 2005 3:44 AM