Author Archive

Texas Legislature Making Strides to Protect Patients

As a physician, I strive to communicate openly and transparently with my patients. Building trust is a critical component in any treatment protocol – whether patients are navigating a life-threatening or debilitating illness, or one that is persistent and chronic.

Too many times, however, trust in the doctor-patient relationship erodes when a patient sees or hears information that effectively misleads them about their treatment in an advertisement paid for by personal injury lawyers.

Thankfully, the Legislature this year approved Senate Bill 1189 to protect Texans from such deception. Gov. Greg Abbott signed a new law that will prohibit certain statements and require warnings and disclosures for legal services advertisements, and ultimately penalize those who violate the rules. The measure, which had the support of the Partnership to Protect Patient Health coalition, took effect Sept. 1.

Kudos to policymakers for taking this stand; it’s a great step, because this type of misleading advertising has simply gotten out of hand.

Personal injury lawyer ads with terms such as “medical alert,” “public service announcement” or “drug alert” have proliferated in recent years. For example, from October to December 2018, television viewers in the Houston, Dallas and San Antonio markets alone saw more than 132,000 advertisements for legal services, according to an American Tort Reform Association (ATRA) report. These lawsuit ads far outnumbered those for pizza or hardware stores. In many instances, such advertising used innuendo or misleading information to scare people about unproven medical risks or threats to their health.

The expansion of such advertising can have a serious impact on patients. A 2016 survey of Texas doctors by Texans Against Lawsuit Abuse found 66% of physicians surveyed said patients have questioned their recommended course of treatment, citing concerns about claims they saw in a lawsuit ad. Eight out of 10 doctors surveyed said these types of ads could lead patients to discontinue their medical treatments.

Spending for lawsuit ads also has grown.

ATRA found  that an average of one legal services ad aired locally every minute across Austin, Houston, Dallas and San Antonio media markets in the fourth quarter of 2018. From October through December 2018, an estimated $16.4 million in lawsuit ads aired – up $1.3 million from  the prior quarter.

It is critical that a patient consult her or his doctor before changing any prescribed treatment, and it certainly should not change based on a TV advertisement by a personal injury lawyer. That’s common sense, but personal injury lawyer ads are aimed at scaring consumers.

As of Sept. 1, lawsuit ads relating to pharmaceutical drugs or medical devices are required to state that consumers should not discontinue medication until speaking to a physician, among other consumer protection language. In addition, ads are not allowed to display logos of federal or state agencies in a manner suggesting the advertisement was presented by such an agency. And these ads will disclose they are paid advertisements for legal services, among other requirements.

My priority is the health of each one of my patients. My many years of training and continuing education to learn about new treatment protocols and new procedures are all aimed at improving my patients’ lives. Collaboration, built on a foundation of open communication and trust is paramount. With this new law, consumers will be better armed when they see or hear healthcare-related ads paid for by personal injury lawyers. That’s good news because, as we all know, patients shouldn’t let lawyers be their doctors.  


Dr. Christine L. Canterbury, M.D., specializes in Obstetrics and Gynecology at Corpus Christi Women’s Clinic and also is past-President of Bay Area Citizens Against Lawsuit Abuse.

Legal Consumer Guide

You’ve heard the old adage that nothing in life is free, and it especially applies when discussing the cost and consequences of lawsuit abuse.  After all, the fallout from questionable legal practices and lawsuits affects each and every one of us. 

For example – take a look at health care.  For far too long, some personal injury lawyers have trolled for clients through aggressive and misleading advertising aimed at scaring patients into suing over their medicines.  Fortunately, Texas legislators have put a stop to this, passing legislation that took effect on Sept. 1, 2019.  The new law requires legal advertisements to properly warn patients that it is dangerous to stop taking a prescribed medicine before consulting a doctor.

This is just one example of how some personal injury lawyers have abused the legal system.  In order to help consumers be more savvy in legal matters, Texans Against Lawsuit Abuse is sharing a Legal Consumer Guide consisting of handy tips to help Texans make informed choices when it comes to their legal needs.

Louisiana: Don’t let a lawyer be your doctor

The Texas Legislature recently passed Senate Bill 1187 by state Sen. Dawn Buckingham – a measure aimed at reining in deceptive legal advertising.

Signed by Governor Greg Abbott, the legislation will take effect on Sept. 1, 2019, and will require legal advertisements to properly warn patients that it is dangerous to stop taking a prescribed medication before consulting a doctor. That’s a common-sense disclosure that quite frankly shouldn’t even have to be addressed. After all, a lawyer is not a doctor.

But unfortunately, misleading legal ads have plagued Texans for years and continue to pester in states around the country. Take, for instance, our neighbors to the east.

A recent study shows that residents of Louisiana’s top three media markets are subjected to viewing a legal services ad every minute on average in local broadcast networks. It comes as no surprise, then, that Louisiana boasts bodily injury claims resulting from auto accidents at nearly twice the national average. Clearly, legal advertising is working for some personal injury lawyers there.

Louisiana Lawsuit Abuse Watch (LLAW) is working hard to ensure the Louisiana Supreme Court and the Louisiana State Bar Association review solicitation advertising rules for lawyers. It’s a good start.

As we know well here in Texas, there are ultimately no winners when it comes to lawsuit abuse, such as misleading or deceptive legal advertisements, except for personal injury lawyers and their pockets. Which is why Texas continues to lead the nation in addressing common-sense lawsuit reforms and keeping Texas one of the best places in the country to do business.

Oklahoma Lands Spot as Judicial Hellhole

Today, the American Tort Reform Association made a midyear addition to its annual “Judicial Hellholes” report and announced that Oklahoma has been added to the “Judicial Hellholes” list.

The announcement comes amid a year fraught with litigation from the state attorney general, liability-expanding decisions from the state’s highest court and failure on the legislature’s part to address the problem in a meaningful way.

Oklahoma’s Attorney General Mike Hunter is in a legal battle against Johnson & Johnson, claiming the company created a public nuisance and is responsible for the opioid crisis. However, Hunter opposes the use of public nuisance allegations in climate change litigation, previously stating, “You cannot litigate what legislators refuse to legislate and regulators refuse to regulate.”

Use of a public nuisance claim with regard to solving the opioid crisis has been unsuccessful in other states, including in North Dakota where a judge dismissed a claim against Purdue Pharma. If AG Hunter is successful in his public nuisance claim against Johnson & Johnson, Oklahoma’s interpretation of public nuisance law will become a national outlier.

“Manufacturers of all products would view a victory for the state in this case with great concern,” ATRA President Tiger Joyce said. “Its applicability likely would grow as states look for additional sources of funding for public health problems.”

The Oklahoma Supreme Court issued a series of decisions that undermine the legislature and diminish its power by striking down existing laws or interpreting them with disregard for their plain meaning.

The court expanded liability for all by deeming unconstitutional the legislature’s limit on noneconomic damages, also referred to as “pain and suffering” damages.

“The Oklahoma Supreme Court clearly ignored well-established legal precedent in this incident, as a majority of state and federal courts that have considered the issue have upheld these sorts of damage limits,” Joyce said.

Despite historically addressing issues through legislative reforms, the Oklahoma legislature now fails to pass commonsense reforms to help alleviate the growing problem. For much of the early 2000s, the state was a national leader in enacting reform legislation to ensure a fair and balanced judicial system.

“The Oklahoma legislature’s current inability to pass commonsense reforms is a sharp contrast when compared with its past legislative accomplishments,” Joyce said. “Legislative support for legal reform has declined at a time when Oklahoma desperately needs it.”

The cost of the U.S. tort system, historically the most expensive in the world, was approximately $429 billion in 2018 and creates billions in loss of personal income.

“Expansion of liability, if not reined in, will surely expand costs to the system and in turn result in loss of jobs, and companies may eventually choose to relocate to a state whose legal environment is more predictable,” Joyce said.

To read the report with full details regarding Oklahoma’s new status as a Judicial Hellhole, visit JudicialHellholes.org.

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Contact: Bailey N. Griffith
202-682-0084
bgriffith@atra.org

Tort Reform? We’ve Already Done It

The Washington Post

But there’s no need for a pilot project. Texas enacted malpractice reform years ago. The president would benefit from a phone call to Texas Gov. Rick Perry (R).

Texas passed significant tort reform in 1995, and more reforms have been enacted since then. A 2008 study from the Perryman Group found that perhaps the most visible economic impact of the lawsuit reforms are the benefits experienced by Texans who have better access to high-quality healthcare. Doctors and hospitals are using their liability insurance savings to expand services and initiate innovative programs; those savings have allowed Texas hospitals to expand charity care by 24 percent.

The total impact of tort reforms implemented since 1995 includes gains of $112.5 billion in spending each year as well as almost 499,900 jobs in the state. The fiscal stimulus to the state from judicial reforms is almost a $2.6 billion per year increase in state revenue. In addition, these reforms are responsible for approximately 430,000 individuals having health insurance than would otherwise, and there has been an increase in the number of doctors, particularly in regions which have been facing severe shortages.

But there is more. Those the class-action lawsuits that result in hundreds or thousands of plaintiffs getting nothing more than a coupon also provides justice to the ambulance-chasing lawyers who file those suits. If filed in Texas, instead of getting six-figure attorney fees when citizens get coupons, the lawyers who file those bills get paid like the plaintiffs they abuse do — in coupons.

Peggy Venable is the Texas director of Americans for Prosperity.

Curb lawsuits to reform health care

Austin Business Journal

There’s an old joke about the boy who goes to the doctor and uses his index finger to point all over his body, explaining “it hurts here, here, here and here.” The doctor sighs and says, “Son, your finger is broken.” This poor kid was looking for his ailment in all the wrong places. That’s exactly what’s happening in Washington as our leaders grapple with health care reform. They’re missing what’s really broken.

Our leaders in Washington want to talk about meaningful reform and reining in costs to make health care more affordable, but they refuse to address the elephant in the room — lawsuits and liability costs and the enormous “surcharge” they place on America’s health care.

Not only unwilling to contain existing lawsuits, the president and Congress appear committed to bringing on even more lawsuits by stripping away liability protections for manufacturers of highly regulated products like medicines and medical equipment. Even if manufacturers follow every rule and regulation set by the government, they’d still be subject to an avalanche of lawsuits. Consumer prices would skyrocket as manufacturers grapple with a maze of conflicting state by state regulations and an onslaught of random lawsuits. This personal injury lawyer bonanza does not bode well for our health or our wallets.

Rampant — and often baseless — medical liability lawsuits have spawned a culture of defensive medicine where physicians protect themselves by routinely ordering unnecessary and expensive procedures, adding needless costs to the system. In fact, 10 cents of every dollar spent on health care in the United States is driven by medical liability, according to PriceWaterhouseCoopers.

American voters clearly see the err of this thinking. According to a recent national survey, the majority of voters believe that the most effective way to lower health care costs is to reform medical liability laws to reduce the number of baseless lawsuits against doctors and hospitals. Simply put, without legal reforms, you can’t make a dent in health care costs.

Washington should look to Texas to see how access to health care improves when medical liability reforms take hold. Thanks to changes approved by Texas voters in 2003, we now have sensible medical liability laws that have allowed doctors and other health care professionals to spend more time in the exam room and not the court room.

Congress should listen to what Texans already know: Until you fix the medical liability lawsuit problem, the health care system will stay broken.

Dr. C. Mark Chassay is co-manager of Texas Sports & Family Medicine and Board Member of the Central Texas CALA in Austin.

Red State Solutions For Blue State Problems

Conservative Cabbie

Filed Under American Politics

Barack Obama and the Democrats in Congress are proposing “blue state” solutions for the problems facing America today. Increased regulation, universal health care, heavy government spending and climate change legislation. But if one is too look at the different states in America, one can see that this may be exactly the wrong thing to do. Ross Douthat has done precisely that:

Consider Texas and California. In the Bush years, liberal polemicists turned the president’s home state — pious, lightly regulated, stingy with public services and mad for sprawl — into a symbol of everything that was barbaric about Republican America. Meanwhile, California, always liberalism’s favorite laboratory, was passing global-warming legislation, pouring billions into stem-cell research, and seemed to be negotiating its way toward universal health care.

But flash forward to the current recession, and suddenly Texas looks like a model citizen. The Lone Star kept growing well after the country had dipped into recession. Its unemployment rate and foreclosure rate are both well below the national average. It’s one of only six states that didn’t run budget deficits in 2009.

Meanwhile, California, long a paradise for regulators and public-sector unions, has become a fiscal disaster area. And it isn’t the only dark blue basket case. Eight states had unemployment over 11 percent in June; seven went for Barack Obama last November. Fourteen states are facing 2010 budget gaps that exceed 20 percent of their G.D.P.; only two went for John McCain. (Strikingly, they’re McCain’s own Arizona and Sarah Palin’s Alaska.) Of the nine states that have raised taxes this year, closing deficits at the expense of growth, almost all are liberal bastions.

Texas is a good example of an economy benefitting from business friendly measures. Of the fastest growing 30 cities in America in the last year, a full eleven of them were from Texas. And most of the others were either from red states like Idaho, Oklahoma and the Dakotas, or swing states like Colorado. Of traditional blue states, only Washington with two entries appears in the top 50. A damming indictment of the growth potential for the blue state liberal economy.

Texas’ relative success is quite startling. In 2008, 70% of all jobs created in the United States were created in Texas, Texas now has more fortune 500 companies than New York has. How has this been done?

Gov. Rick Perry says holding the line on taxes, having a reasonable regulatory structure and offering economic development incentives such as the Texas Enterprise Fund and Texas Emerging Technology Fund have attracted hundreds of employers to Texas. He notes that 7,300 new jobs were created in Texas in November 2008 alone.

It is all about making the economy business friendly. And nothing demonstrates this more than tort reform:

In fact, new businesses and doctors have flooded into the state in the wake of the lawsuit abuse reform legislation, which capped non-economic damages at $250,000. According to the Dallas Morning News, the average award prior to tort reform was $1.21 million; now it is $880,000.

Malpractice lawsuits have plummeted. In 2003, in a last-minute rush before lawsuit reform took effect, 1,108 medical liability suits were filed in Dallas County. Only 142 cases were filed the following year. In 2007, 184 cases were filed.

But tort reform does not necessarily mean throwing the people or the patient under the wheels of the business juggernaut:

To ensure protection for patients, the legislature beefed up the power of the Texas Medical Board and disciplinary actions against doctors have nearly tripled since 2001.

These differences in economic outcomes aren’t just restricted to Texas and California:

This assumption is borne out by an analysis of economic cycles by the website JobBait.com, which has found that since 1990 the states most vulnerable to economic downturns include the Great Lakes states of Michigan, Illinois, Ohio, and New York as well as Connecticut and California. Those most resistant have been generally red bastions such as the Dakotas, Nebraska, and Texas, and resource-rich states such as Alaska, Montana, New Mexico, and Wyoming.

The blue state mentality is to prop up a union based economy, a legacy that Obama is continuing. But whilst unions may be good for their employees, they hurt those outside the unions. Having gold plated health insurance, guaranteed jobs, and reduced working hours may be great for members of the UAW, but the federal propping up of these unions (for example, the Democrats are funnelling $10 billion of taxpayers money to the UAW as part of the Health Care bill) means that resources are being denied to non-union members. And whilst it may be coincidence that blue state economies are union based economies whilst red states are less likely to be, it’s also not difficult to see a high probability of causality there.

There is no guarantee that what works for Texas may not work for America, but isn’t it something that at least should be considered. But that would mean ignoring powerful Democratic supporters like trial lawyers and trade unions in favour of America at large. And the Democrats are never going to do that.

Promise of scrutiny could save asbestos defendants

LegalNewsline.com
BY ARICKA FLOWERS

Dorigo Jones
Robreno

When General Motors filed for bankruptcy three months ago, legal analyst Bob Dorigo Jones said he was caught by surprise upon learning that mass tort litigation cost the auto giant close to $1 billion last year.

Spokesperson for the Foundation for Fair Civil Justice, Dorigo Jones said the cost of litigation defense, including asbestos, certainly played a factor in bringing down the mighty GM.

“It took the company’s bankruptcy process to bring into public light just what a burden litigation has been on one of the largest manufacturing companies in the world,” he said.

Dorigo Jones credits U.S. District Judge Eduardo Robreno, who presides over an asbestos Multi District Litigation docket in the Eastern District of Pennsylvania, for scrutinizing mass cases and dismissing 500,000 claims in four months.

Ultimately, the promise for extra scrutiny could save the defendants on Robreno’s docket a great deal of money, he said.

“Judge Robreno’s actions are going to protect other American job providers from suffering the same kind of fate that GM or Chrysler suffered in having to defend themselves against lawsuits that did not have any merit,” Dorigo Jones said.

“The plaintiffs’ lawyers are retreating because the veil of secrecy they had been using to basically extort money out of companies has been removed by a federal judge.”

Even if defendants have to spend money on the front end by defending cases rather than settling, Dorigo Jones said Robreno’s approach will change the types of cases that are filed; thereby saving defendants money.

“In the short term, it will force defendants to spend more to prove their innocence,” he said. “But in the long run, it will save them money by discouraging frivolous lawsuits that are based on junk science. And that is good for the employees that are working for those companies and fighting for their jobs.

“It’s good for retirees whose money is tied up in mutual funds that invested in those types of companies,” he said. “The only people it’s not good for are the plaintiff’s lawyers who have been getting rich off these schemes.”

Richard Epstein, a University of Chicago distinguished professor of law, agrees that careful review of asbestos cases will drive down asbestos filings. But he also said that some plaintiffs’ attorneys will try to get around Robreno’s system entirely.

“I think you’ll find that many plaintiffs will try to avoid him and see if they can get another MDL judge and beat this guy at his own game,” Epstein said.

“But even if they are able to do that, he’s sitting out there as a role model and the next judge will take a closer look at the case to see why Robreno is doing things the way he is.”

Impact

When it comes to Robreno and his impact on asbestos litigation, even an asbestos lawyer says the quick pace in which he is going through the docket will help weed out good cases from the bad.

“I think it forces plaintiffs to look at a case and say, ‘Well wait a minute. Is there anything left to this case? Or have I already settled this case in its entirety? Is it worth it? Is my client going to get a return on this $350 investment that I’m going to make in their case by re-filing,'” said John E. Herrick, a lawyer with Motley Rice, LLC of Mt. Pleasant, S.C., who is also on the plaintiff’s steering committee for the MDL.

But Herrick is not convinced that Robreno’s actions are to the advantage of defendants. The fact that some cases are finally moving forward can easily be seen as a victory for the plaintiffs, he said.

“You hear that the defendants think the plaintiffs were trying to extort money from them and now the court is preventing that,” Herrick said.

“But the argument could easily be made that with this mass of work going forward, one could ask, ‘How much do you think it’s going to cost each defendant to work up each of these cases and pay their attorneys for doing all of that work?’

“One might say that the court is forcing that to a head by entering the scheduling order like it is. But who does that benefit? Which side?” Herrick said.

Another nemesis?

Plaintiffs’ lawyers are not the only adversary of defendants in mass tort cases.

According to William Pillsbury, an attorney for New York-based Anderson, Kill & Olick, P.C., there is a problem with insurance when it comes to handling the cost of mass tort litigation, like asbestos.

He said there have been numerous instances when companies went bankrupt or simply couldn’t absorb the costs of mass tort litigation, “especially when, if for whatever reason, their insurance didn’t pan out.”

When it comes to the fiscal health of a company in mass tort litigation, Pillsbury puts a good deal of the responsibility on the corporation.

“The really big issue is that the risk managers of these companies really need to be aware that there can be legitimate problems,” he said.

He said that a lot of these companies have occurrence-based policies, which means in 2020, “You might be litigating a case that involves a policy from 2008,” Pillsbury said.

Companies should look at what their products are, do a good analysis of where their risks are and make sure they are insured; both presently and down the line, he said.

“Often in asbestos cases we’re talking about a policy from the 1970s or 1980s in a case you are litigating today,” Pillsbury said. “It’s hard to think that far in advance, but it’s certainly something that needs to be done.”

Texas – Law Firms Lessons From Texas Medical Malpractice Reforms

The Editor Interviews John H. Martin, Partner, Thompson & Knight LLP.

Editor: John, we congratulate you for being a leader in so many organizations dedicated to relieving corporations from the burden of unmeritorious litigation and its costs. What has been your role in some of these organizations?

Martin: I served as chairman of the Dallas Association of Defense Counsel in the 1980s. I was president of the Texas Association of Defense Counsel (TADC) for one year in 1996-97. I was president of DRI for one year 2007-08, and will become president of Lawyers for Civil Justice in May 2010.

Editor: Describe the Texas medical malpractice litigation reform effort.

Martin: The most recent Texas malpractice legislation was passed in 2003. There have been several periods dating back to the late 1970s when special legislation was passed to benefit healthcare providers. In the late 1970s, a shortened statute of limitations was enacted. This was partially declared unconstitutional by the Texas Supreme Court. There were efforts in the 1980s and ’90s that resulted in the creation of the Texas Medical Disclosure Panel that set standards for informed consent.

The most significant changes took place as part of Texas House Bill 4 in 2003. It put a $250,000 cap on non-economic damages. Its passage reflected a belief in the Texas legislature that there were too many lawsuits against healthcare providers. In the early 2000s, doctors were leaving Texas, resulting in a shortage of healthcare providers. This occurred primarily in parts of our state where medical malpractice insurance had become very expensive as a result of very high jury awards. I never really heard any convincing evidence that we had a problem attracting doctors to Dallas or Houston.

Editor: Has the business community supported litigation reform?

Martin: There are several business groups that have been active in the Texas legislature in the litigation reform area. The Texas Civil Justice League and Texans for Lawsuit Reform have been very active in the Texas Legislature on tort reform generally. They don’t always have the same agenda, but they have been very active. When it comes to medical malpractice legislation reform, the Texas Medical Association and the Texas Hospital Association have been extremely active.

Editor: Have tort reforms attracted business to Texas?

Martin: There are a lot of reasons why Texas is attractive to business. It is a great place to live for one thing – for many reasons including the climate.

Government is business-friendly, both at the state and local levels – more than in most other states. Texas has a very good tax situation for business and no personal income tax. Those reasons have been very important in attracting business to Texas. And, Texas has done a great job in attracting corporate headquarters.

Certainly, some industries were hit hard by litigation and I am sure that some of the reforms that took place in 2003 as part of House Bill 4 increased the state’s attractiveness for these businesses. Other industries don’t seem to worry as much about litigation.

Editor: What was the role of defense counsel and their organizations in the tort reform effort?

Martin: Defense counsel monitor all of these legislative efforts and sometimes the TADC will take a position on a certain bill or parts of certain bills. Other times, because of the diverse constituencies that defense lawyers represent, it seems prudent not to take a position.

I was not involved in the legislative sessions when House Bill 4 was passed, but I know that TADC supported certain parts of it and did not support other parts of it.

Different constituencies in the business community had different perspectives on this legislation. House Bill 4’s medical malpractice provisions placed a $250,000 dollar cap on non-economic damages in suits against doctors and hospitals. This was very advantageous obviously to the doctors, hospitals and their insurers. However, where the doctor or a hospital is a codefendant along with a pharmaceutical company or a medical device manufacturer, the fact the doctors’ and hospitals’ liability is capped can place the manufacturer at a disadvantage. The fact that some provisions of H.B. 4 had the potential to disadvantage some corporations meant that defense counsel and their organizations were divided in their support.

Editor: How significant are the direct costs of tort litigation (defense costs and cost of judgments and settlements)?

Martin: Civil litigation is too expensive. Efforts are being made at the national level as a result of recommendations made in the Final Report of the American College of Trial Lawyers Task Force on Discovery and of the Institute For The Advancement Of The American Legal System (IAALS), which is an organization based in Denver. There is a major initiative going on at the federal rule-making level to consider adopting some of the recommendations to reduce the costs of civil litigation in the federal courts.

Sometimes reform legislation spawns a lot of litigation that results in more costs. Let me give you a good example. Our Texas medical malpractice legislation requires plaintiffs to file an expert report before proceeding with a medical malpractice suit. The law is less than crystal clear because the statute was not particularly well written. Its ambiguity has spawned a tremendous amount of appellate litigation, which has increased the cost of litigation – exactly what the legislation was intended to prevent.

The legislation on expert reports needs to be tightened up so that there isn’t as much litigation about it. It seems that every time I open the advance sheets there are cases dealing with the adequacy of expert reports and, if the law were clarified, that wouldn’t happen as much.

Editor: Has e-discovery imposed a significant burden on doctors, hospitals and their insurers?

Martin: I haven’t seen it as being a huge issue in Texas state court litigation. One reason is that Texas was the first state, and for a long time the only state, to have an electronic discovery rule. It is a very short and simple rule, but it basically puts the burden on the party requesting the electronically stored information. If the electronically stored documents are not reasonably available, then the requesting party has to pay for discovery. It is a very effective cost-shifting device that stops a lot of the abuse. I wish that the federal rules had incorporated this. I testified before the Federal Rules Advisory Committee, as did the president of the Texas Trial Lawyers Association, and both of us advocated the Texas rule as the way to go, but the federal committee decided to go in the other direction and not impose cost shifting.

Editor: Do you believe that doctors should be protected against malpractice suits if they follow standard medical guidelines or governmental standards.

Martin: I think that concept is a good idea. One of the early medical malpractice reforms in Texas was to establish a body called the Texas Medical Disclosure Panel that created a set of informed consent guidelines. If a physician complies with those guidelines and obtains the informed consent of the patient, it’s presumptively a valid consent and creates a pretty heavy burden for the plaintiff to overcome. I think the problem is that doctors don’t practice medicine out of a cookbook. It really is an art in addition to being a science, so this would not be workable in all areas of medical practice. Nevertheless, in informed consent cases, it has worked pretty well in Texas.

It is very difficult to cover the entire waterfront with standards of medical care. For one thing, they change all the time. Where certain standards can be set, it is a great concept that works well in limited areas of medical practice, but I don’t think it’s practical to think it would work for every medical situation that comes up.

Editor: One of the goals of the pending federal healthcare legislation is reducing overall healthcare costs. In your judgment, would the Texas legislation be a good model for incorporation in a federal healthcare reform package?

Martin: My personal belief is that tort law should be handled at the state level, not the federal level. Handling tort law at the federal level is yet another example of the federal government meddling in what should be the states’ business.

If there were to be federal legislation in an area, I think some aspects of the Texas medical malpractice laws are good. I think the informed consent and expert reports parts are good. However, the expert report concept could be written much better than the one we have in Texas so that less litigation is required.

I personally believe that the biggest fix that is needed in our tort system in general, and not just in medical liability cases, is in the area of punitive damages. All too often the threat of punitive damages scares defendants into settling cases that should not be settled or that should not be settled for the amount that is ultimately paid.

Trial judges, both state and federal, are extremely reluctant to dismiss a punitive damages claim until after trial. The law at both the state and federal level needs to be changed. It should provide for an interlocutory appeal if a judge denies summary judgment on a punitive damages claim before trial. The law should also make it an automatic reversible error if punitive damages are submitted erroneously and a plaintiff’s verdict for compensatory damages results, because plaintiff’s lawyers try to use their request for a large punitive award to get the jury to compromise and award higher compensatory damages.

Editor: What role do you think judicial compensation plays in increasing the cost of medical and other types of litigation?

Martin: In some areas we clearly have an inadequate number of judges. The resulting backlogs and inability of judges to give sufficient attention to individual cases have an obvious impact on costs. I worry long term that the quality of our judiciary is going to decline dramatically if we don’t do something about the judicial pay situation both at the state and federal level. This too will increase litigation costs, including medical malpractice litigation. However, I am fortunate to practice in a state where, by and large, we still have excellent state and federal trial court judges.

It is very hard for a lawyer with a young family to give up her practice to be a judge unless she has some other means of support. It has resulted in some things that are not good for the system. The percentage of federal judges that come out of private practice today is far less than it was 10 or 15 years ago. A much higher percentage of judges are coming to the bench from the public sector. Having judges come from the public sector is not a bad thing, but there needs to be a balance. We need judges who come both from the private sector and from government.

While compensation is a problem at the federal level, our judges in Texas are grossly underpaid. Many first-year lawyers with large law firms make more money the day they step out of law school than our judges make. There is something terribly wrong about that.

Please email the interviewee at john.martin@tklaw.com with questions about this interview.

Tort Reform Is Key to Health Reform

Investors.com

Though common-sense Americans have repeatedly raised the issue of tort reform while discussing health care legislation with members of Congress during town hall meetings this month, too many lawmakers and analysts still stubbornly insist that medical liability lawsuits do not contribute significantly to rising health care costs. These lawmakers and analysts are wrong.

A 2006 Harvard School of Public Health study found that four out of every 10 medical malpractice lawsuits filed in America each year were “without merit.” Nonetheless, defending against such lawsuits imposes costs on doctors, hospitals and insurers that invariably are passed on to health care consumers.

Beyond the obvious costs of litigation, more subtle costs related to the practice of “defensive medicine” are contributing to runaway health care inflation.

How much? In a Massachusetts Medical Society survey published last November, 83% of Bay State physicians cited the fear of being sued in their decisions to practice defensive medicine.

According to the 900 doctors anonymously surveyed, on average, 18% to 28% of tests, procedures, referrals and consultations and 13% of hospitalizations were ordered to avoid lawsuits. All of this adds at least $1.4 billion to annual health care costs in Massachusetts alone, and national estimates range as high as $200 billion.

So, as Mississippi Gov. Haley Barbour asks, “If we are trying to make health care more affordable, how can we leave out tort reform?”

Another longer-term concern about leaving tort reform out of comprehensive health care legislation revolves around what is and will remain a growing need for more primary care physicians.

President Obama’s stated desire to emphasize preventive medicine as a means to lower overall health care costs will, with a growing and aging population, require a greater number of doctors. Yet the Association of American Medical Colleges predicts that the overall shortage of doctors practicing both primary care and high-risk specialties may grow to nearly 125,000 by 2025.

Surely medical schools will find it easier to persuade bright young men and women to pursue careers in medicine if the costly threat of medical liability lawsuits is reined in. The experience of states that have enacted tort reforms bears this out.

In a recent column appearing in the San Francisco Examiner, Texas Gov. Rick Perry wrote: “Just six years ago, Texas was mired in a health care crisis. Our doctors were leaving the state, or abandoning the profession entirely, because of frivolous lawsuits and the steadily increasing medical malpractice insurance premiums that resulted.”

But Texas has since joined 24 other states by enacting reforms that include a reasonable limit on non-economic damages for pain and suffering of up to $750,000 per incident. This essential reform does not limit compensatory awards for calculable lost wages and medical expenses, but it does balance the interests of patients and care providers while helping to ensure access to necessary care.

Now, according to Gov. Perry, doctors’ insurance rates have declined by an average of 27% while the “number of doctors applying to practice medicine in Texas has skyrocketed by 57%. In . . . just the first five years after reforms passed, 14,498 doctors either returned to practice in Texas or began practicing here for the first time.”

Clearly then, President Obama should reconsider his recently stated opposition to limiting non-economic damages in medical liability litigation. The president and Congress should also consider additional liability reforms, such as medical courts, administrative compensation programs, “early offers” and “safe harbors” for physicians who practice in compliance with evidenced-based clinical guidelines.

If comprehensive health care reforms are to succeed, they must include liability reform. Certainly real victims of negligence must be fairly compensated, but public policy must discourage litigation that abuses our civil justice system and makes health care less accessible and more expensive.

Joyce is president of the American Tort Reform Association (www.atra.org), the only national organization exclusively dedicated to reforming the civil justice system.

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