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Malpractice Reform & Consequences -- Texas Style

Posted by John McDonough  September 8, 2013 08:22 PM

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Nearly every time I speak to a physician audience, I get at least one question on medical liability reform (or "medical malpractice," a term many physicians dislike). When pressed about what reform they would prefer, the most common answer is the imposition of strict liability caps on pain and suffering such as those in Texas and California. For many physicians (Majority? Who knows? Clearly a lot.), this is the holy grail of health reform and Texas is the promised land for how physician practice ought to be in the U.S. of A.

Whatever your view, I urge you to read this article from the Texas Observer which I found fromduntsch.jpg this post at the Incidental Economist. It's about the collapse of physician oversight in Texas that allowed a neurologist named Christopher Duntsch (right) to leave two of his patients dead and four paralyzed before the Texas Medical Board got around to suspending his license.

Saul Elbein writes:

"...the real tragedy of the Christopher Duntsch story is how preventable it was. Over the course of 2012 and 2013, even as the Texas Medical Board and the hospitals he worked with received repeated complaints from a half-dozen doctors and lawyers begging them to take action, Duntsch continued to practice medicine. Doctors brought in to clean up his surgeries decried his 'surgical misadventures,' according to hospital records. His mistakes were obvious and well-documented. And still it took the Texas Medical Board more than a year to stop Duntsch -- a year in which he kept bringing into the operating room patients who ended up seriously injured or dead."

The Texas backdrop is a hollowed-out regulatory structure designed to make it nearly impossible to hold physicians and hospitals accountable for injuries to their patients. The 2003 cap on malpractice pain and suffering awards makes it economically untenable in most cases to sue; plaintiffs with lower incomes offer little compensation for economic damages, so the system treats injuries to the well-off as far more worthy than injuries to middle and low income wage earners. Earlier Texas "reforms" held hospitals harmless from liability unless plaintiffs could prove hospital "malice" against the injured patient. And yet another "reform" allows hospitals unlimited license to keep credentialing information confidential. It's a triple-header that leaves injured patients with few or no options for justice.

And has this system created positive side effects for Texas in terms of health insurance premium affordability and physician supply? Not really. According to the Commonwealth Fund, Texas health insurance premiums are the 21st highest among the 50 states, but those premiums take more out of average household income than all but five states.  And physician supply? Here's a recent New York Times account:

"Texas lawmakers invested millions of additional dollars in the 2013 legislative session to address a looming physician shortage. Voters and university regents have rubber-stamped plans to open two new medical schools, in Austin and the Rio Grande Valley. But those moves have not placated the medical community, which remains concerned that Texas has no long-term solution to produce enough physicians, particularly in primary care, to support the surging population."

Some promised land!

So is medical liability reform is bad idea? Not at all -- but it should be reform that works for patients as well as for physicians and hospitals. What might that be? Look no further than the Massachusetts Alliance for Communication and Resolution following Medical Injury, a joint effort of medical providers, patient advocacy groups and others focused on communication, apology, and resolution (CARe) across Massachusetts as an alternative to traditional malpractice litigation (and partially funded by the Obama Administration). MACRMI has only been in operation a few years, and so results are not in, but the program is based on a successful similar demonstration in Michigan.

Two reform paths -- Texas or Massachusetts.  Easy choice for me.

This blog is not written or edited by Boston.com or the Boston Globe.
The author is solely responsible for the content.

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About the author

John E. McDonough is a professor of practice at the Harvard School of Public Health. He is the author of the book “Inside National Health Reform”, published in 2011 by More »

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