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Malpractice curbs hailed, faulted

Texas law draws doctors, frustrates some claimants

Dr. Theodore G. Belitsos was attracted to Texas's lower malpractice insurance costs. Dr. Theodore G. Belitsos was attracted to Texas's lower malpractice insurance costs. (Associated Press)
Email|Print| Text size + By John Donnelly
Globe Staff / November 26, 2007

HILL COUNTRY VILLAGE, Texas - For Dr. Theodore G. Belitsos, the move from Maine to Texas this year offers hope of a financial bonanza. His medical malpractice insurance alone was cut to $5,031 in Texas, from $11,300 in Maine last year.

But for Danny Lara, whose father died in 2005 because of what he believes was an egregious error by a doctor, the state's cap in medical malpractice awards has been a nightmare. For nearly two years, he has been unable to find a lawyer to take his case; the lawyers say there's no money in it anymore.

Texas's changes in medical malpractice law are being credited with helping to attract an influx of out-of-state doctors from Maine to Hawaii who appreciate the increased protection from high jury awards and steep drops in insurance rates. But consumer groups also sharply criticize the state's $250,000 cap on pain-and-suffering awards as severely limiting legitimate claims, and say the in crease in doctors has yet to benefit rural areas.

On the presidential campaign trail, Republican Rudy Giuliani has frequently trumpeted the Texas example, saying it could bring economic benefits and improve healthcare access in other states. "Keeps up like this, we're going to have to go to Texas for medical care," Giuliani said jokingly in Hanover, N.H., last month.

Another Republican candidate, former governor Mitt Romney of Massachusetts, called for federal caps on noneconomic damages.

"These lottery-sized awards and frivolous lawsuits may enrich the trial lawyers, but they put a heavy burden on doctors, hospitals and, of course through defensive medicine, they put a burden on the entire healthcare system," Romney said last week at Des Moines University, a medical school, drawing applause from the audience.

But Democratic hopeful John Edwards, a former trial lawyer, has said that the changes hurt the victims of medical errors while doing little to reduce the cost of healthcare. Edwards recently said that "insurance company-driven hysteria" has created the false impression that malpractice insurance rates are significantly driving up healthcare costs.

"I think the reality is that the cost associated with legal cases is well under 1 percent of our [medical] system," said Edwards, a former senator from North Carolina.

Most states have much higher caps on pain-and-suffering awards, including Maine, which allows up to $1 million.

In Texas, the sharp curb on jury awards has succeeded at its goal of attracting physicians - at least by the numbers. The Texas Medical Board received around 2,400 license applications a year before 2003, when voters passed Proposition 12, the ballot initiative limiting malpractice awards. In fiscal years 2006 and 2007, the board received slightly more than 4,000 applications each year.

Supporters of the changes point to an influx of specialists, such as Belitsos, an anesthesiologist whose family moved to this part of San Antonio from Lewiston, Maine. "States that don't have malpractice reform, well, that represents an uncontrollable cost," Belitsos said one morning after dropping off his son at a private school.

Belitsos, 44, said the reduction in malpractice insurance costs was one financial factor among several that influenced his decision. While he now earns less money than he did in Maine, he believes he has the potential eventually to double his salary in the fast-growing, less regulated Texas market.

"I'm trading lifestyle for long-term financial security," he said, maneuvering his white Isuzu Trooper through San Antonio traffic. "At this stage in my life, it's a little early to think about a lifestyle practice."

But for Lara and his family, the change in Texas's malpractice law has curbed their efforts to file a lawsuit in the death December 2005 of the family patriarch, Jose I. Lara, who was 81. The elder Lara died after post-operative complications to treat colon cancer.

His family believes that a doctor wrongly prescribed intravenous fluids without giving the patient a diuretic drug to help his kidneys handle the extra fluids; the elder Lara, in two weeks, increased his weight from 198 pounds to 287 pounds before he died of pneumonia, according to hospital records.

"It's very frustrating," said Danny Lara, a registered nurse who had tears in his eyes as he retold the story. "Here we have what we believe is blatant malpractice, but no law firm will touch it. It's beyond me - doctors can literally get away with murder."

He fingered through a sheath of documents, including rejection letters and e-mails from lawyers. The family now has little hope to file a lawsuit. The two-year statute of limitations runs out next month.

One e-mail, from a lawyer named Dennis C. Peery, dated June 28, 2006, read: "Medical malpractice cases have always been very difficult as well as expensive to pursue. The most recent changes make it impossible to litigate cases such as the one you describe."

Peery, a past president of the San Antonio Trial Lawyers Association, said in an interview he used to take four or five medical malpractice cases a year; he said he hasn't taken any in the last year because "it's not economically feasible. It's not unusual to go to trial and spend $100,000 of my own money on a case, mostly to pay experts. It's also not unusual for a case to last years."

He said lawyers still take cases involving a victim who earns a high salary because Texas law does not limit economic damages, and juries can still grant multimillion-dollar awards for lost income. For lower-income people, or those who do not work, the only way to get a large award has been in compensation for pain and suffering.

"Those cases involving children, or retired citizens, or stay-at-home moms, they are rarely taken" in Texas, Peery said. "It's a discriminatory cap."

But the cap, said Dr. Donald W. Patrick, the Texas Medical Board's executive director, has clearly helped to make medical care more accessible to many residents by increasing their medical options. "I don't think [doctors] come to Texas strictly because of tort reform, but it's a factor they take into consideration," he said.

Patrick said most of the out-of-state doctors are either in their first few years of practice, or have just finished their residencies elsewhere. Veteran doctors are less likely to make a move, even in the face of rising insurance premiums - a reluctance confirmed by a recent study at the Harvard School of Public Health.

But even as younger doctors move into Texas in far greater numbers, they tend to locate in the same urban areas - undercutting one of the strongest arguments for Proposition 12.

Supporters of the curb on jury awards had said that malpractice laws were responsible for shortages of doctors in rural Texas, specifically highlighting 152 counties that did not have an obstetrician. But an analysis in Texas Observer magazine found that as of September, the same number of counties remains without one. It also found that 124 counties have no obstetrician, neurosurgeon, or orthopedic surgeon.

Belitsos joined about 200 other anesthesiologists in the San Antonio area. Despite the recent influx of physicians, he said, San Antonio still has a shortage of anesthesiologists, which he hopes will give him opportunity to build his practice.

Standing outside a small medical center before an 8 a.m. surgery, the first of six surgeries on his schedule this day, Belitsos said that the issue of malpractice is complicated and that in cases in which a doctor does not cure a person or fix an ailment, does not mean the physician should be penalized.

"It's a hard balancing act," he said, referring to the rights of patients and protection for doctors. "Medicine is not an exact science."

John Donnelly can be reached at donnelly@globe.com

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