After Tort Reform: Texas Doctors Operate without Oversight

Largely in line with the mission of this firm, pro-civil justice blog The Pop Tort recently featured an article about regulation in the health care industry, writing that “deregulation and lax regulatory enforcement [seem] to have become a national goal.” It goes on to claim that one of the results of this regulatory environment is “unsafe, incompetent doctors,” and highlight the case of a Texas doctor (named Christopher Duntsch) who, upon having his license revoked by the Texas Medical Board in June of this year, had left two of his patients dead and four paralyzed after a string of surgeries that went awry.

The Texas Observer reports that the surgeon’s mistakes, though “obvious and well-documented” were not noticed for more than a year by the Texas Medical Board. “In Duntsch’s case, we see the weakness of Texas’ unregulated system of health care, a system built to protect doctors and hospitals. And a system in which there’s no way to know for sure if your doctor is dangerous.” This corroborates one of our past articles in which we examined the landscape of post-tort-reform Texas.

In 2003, legislators passed a measure that effectively closed courthouses across the state to victims of medical malpractice. The package limited the amount of noneconomic damages (like pain and suffering) that could be collected by a victim of medical negligence. The goal of such measures was alleged to lower medical malpractice insurance premiums, encourage more doctors to practice in the state, and lower overall healthcare costs. None of these goals, however, were realized by this legislation, even though politicians like Governor Rick Perry bragged about bringing over 20,000 new doctors to the state.

PolitiFact, a nonpartisan organization owned by the Tampa Bay Times, found that the increase in doctors can be credited almost entirely by population growth: as the population of the state grew by 20 percent, the number of doctors increased by 24 percent. Also worth pointing out is that in the nine years before the passage of tort reform legislation (1995 — 2003), the number of doctors in Texas grew at twice the rate of the state’s population. Moreover, Tom Banning of the Texas Academy of Family Physicians points out that the vast majority of new physicians have established practices in the wealthiest suburbs of the state’s largest cities, a far cry from providing medical services to underserved portions of the population.

Texas’ tort reform package has not saved patients’ money, nor has it has added new doctors to the rural areas of Texas where they are most needed. Rather, it has made it harder for victims of medical negligence to file suit in civil court and to obtain adequate compensation for their injuries and losses. The lax regulatory environment that has resulted from the so-called “comprehensive tort reform package” has allowed doctors like Christopher Duntsch to repeatedly put the health and safety of his patients on the line while operating under the radar of the state’s system of oversight.

As a Texas personal injury attorney commented on one of our articles last year, “Texas families gave up important legal rights and received nothing in return.…Study after study has shown that Texas tort reform did nothing to reduce medical costs.” He concluded, “In short, in Texas, the family took a hit” while insurance companies profited.