Many Republicans in Congress are looking at ways to curb the negative impact of excessive lawsuits on the nation's economy, so a local doctor went to Capitol Hill recently to show them how it can be done "Texas Style."
Dr. David Teuscher, an orthopedic surgeon with the Beaumont Bone and Joint Institute, participated as a panelist at "Protecting Main Street from Lawsuit Abuse," a discussion hosted by the Senate Republican Conference and chaired by Texas' own U.S. Sen. John Cornyn.
Cornyn said litigation reforms are important to economic recovery, especially since litigation costs have a disproportionate impact on small businesses.
"America cannot sue its way back to prosperity," Cornyn said.
Republicans generally agree that litigation and health care reform should include reforms of medical malpractice liability.
Dr. Teuscher knows first hand about such reform, having served as chairman of the American Academy of Orthopaedic Surgeons' Committee on Professional Liability.
He was a supporter of tort reform when the state of Texas made sweeping changes to its medical liability laws in 2003, enacting a $250,000 cap on non-economic damages in medical malpractice cases.
"Real damages will never be capped in Texas, only those that are un-measurable," he said in a March 18 telephone interview.
Non-economic damages include things like pain and suffering, loss of consortium and mental anguish. Dr. Teuscher emphasized that the Texas reforms do not put a limit on recovery of real costs like medical expenses for patients that have been truly injured.
Prior to tort reforms, the state's medical liability system was in crisis, Dr. Teuscher said, and thousands of physicians left the state for friendlier locations.
"Texas made difficult decisions and now doctors are flooding back to the state," he said.
Before the reforms, the amount of non-economic damages had quadrupled in only a few years, he said, and doctors were faced with six-figure premiums for malpractice insurance. Doctors were then faced with even fewer options, as many of the insurers pulled out of the state.
In 1998, he said, there were 17 carriers for Texas doctors to choose from for malpractice insurance. By 2003 that number had dropped to four.
"There have already been 30 new carriers in the state (since reforms)," Dr. Teuscher said.
Dr. Teuscher said that even though 87 percent of malpractice cases are either dropped or dismissed, they still cost at least $25,000 to defend and take substantial time away from a physician's practice.
The fear of litigation often drove doctors out of state, and many of those that stayed decided to retire early, removed themselves from emergency room calls or limited the type of patients they would treat.
One field considered litigation prone is obstetrics and gynecology. Before the reforms, many doctors quit the specialty or stopped delivering babies.
"Now, for the first time ever, Christus Health in Beaumont has no openings at its hospital for ob/gyns," he said.
Dr. Teuscher said the lawsuit climate can result in doctors practicing "defensive medicine" to protect themselves from liability.
"Defensive medicine is expensive medicine and not the best medicine," Dr. Teuscher said.
He explained that defensive medicine means a doctor will consider every possible condition from the onset of treatment – even those that are unlikely – and often order expensive tests that may not have been needed.
When a case does make it to court, the non-economic damage caps now give both sides more realistic figures to work with, Dr. Teuscher said, and settlements are reached earlier. Less time spent on a case, means more settlement money goes to the plaintiff instead of to attorney's fees.
"Patients are getting more money, and they're getting it sooner," he said.
He said courts are not intended to be the place to discipline doctors.
"That's what the Medical Board does," he said.
And filing a lawsuit against a doctor is not necessarily favorable to the patient, he said.
"Only one in seven (malpractice) trials results in a judgment for the plaintiff," Dr. Teuscher said.
And while he admitted that damage caps are only one way to reform the country's healthcare system, national lawmakers don't need to look much further than the Lone Star State to see how it's done.
"What I want to tell Congress and the administration is that Texas has a model that is working, and it's a model that is meaningful, measurable and sustainable," Dr. Teuscher said.