The myth of frivolous lawsuits and their detrimental effect on the health industry and health-care costs has driven the campaign for medical malpractice tort reform for decades. The myth is a successful one, so pervasive as to be accepted as common knowledge. It has been instrumental in the passage of laws in multiple states. Texas passed tort reform capping medical malpractice payouts and making it more difficult for patients to sue hospitals in 2003, and since then has been touted as a model for tort reform by supporters wishing to pass similar legislation across the nation.
The question, then, becomes: has the legislation delivered the improvements claimed by its proponents? A recent study, conducted by researchers including University of Texas law professor Charles Silver, addressed just that question. The researchersexamined Medicare spending in Texas counties and saw no reduction in doctors’ fees for seniors and disabled patients between 2002 and 2009. The research also shows that health care spending has increased annually everywhere, including those states with caps on malpractice payouts. No evidence was found that Texas spending went up slower compared to other states. In fact, the study suggests that Medicare payments to doctors in Texas rose 1 to 2 percent faster than the rest of the country.
Claims by Jon Opelt, executive director of Texas Alliance for Patient Access, that tort reform in Texas has benefited patients by adding nearly 5,000 more physicians than can be accounted for by population growth cites data that does not take into account several key factors such as doctors who left the state or retired, creating vacancies for their jobs; physicians who don’t treat patients but do research or administrative work; and physician growth compared with other states. Once these factors are taken into account, Texas saw the number of direct patient care doctors grow more slowly after tort reform than it did before, and did slightly worse than other states in attracting doctors, the study says.
According to Tom Baker, author of The Medical Malpractice Myth, the real medical malpractice costs have little to do with litigation. The problem is too much medical malpractice, not too much litigation.