AUSTIN – Since the courts were apparently no help, those wishing to inflate Texas’ medical malpractice cap on non-economic damages are now turning to the state legislature.
Without little to no fanfare, state Rep. Gene Wu (D-Houston) introduced House Bill 719 on Dec. 21, a piece of legislation seeking to collapse the fixed med-mal cap and adjust it for inflation each year.
“This is an issue of fundamental fairness,” said Wu, a private practice attorney. “If there’s no recovery, a lawyer won’t take the case. It’s a matter of justice for people. If people cannot have their grievances settled in the courts, then our system breaks down.”
The prospect of an inflated cap, which was set at $250,000 per medical defendant in 2003, has rallied some groups into action.
Texans for Lawsuit Reform has openly declared its opposition to HB 719, and Texas Alliance For Patient Access, a statewide coalition of medical professionals and physician liability insurers, testified against the bill during a March 28 House Judiciary hearing.
Jon Opelt, executive director for TAPA, told the Record the cap has been challenged and affirmed in the courts in the past, but that this is the first time legislation has been introduced.
When asked who would specifically benefit from a raised cap, Opelt said an increase would give “trial lawyers more incentive to sue.”
“Indexing the cap is a zero-sum proposition,” Opelt said. “The filing of weak or dubious claims will increase – so, too will defensive medicine as doctors, nurses, clinics, hospitals and nursing homes try to protect themselves from lawsuits.
“Increasing the cap will result in higher health care costs, fewer physicians per capita … and will steadily undo the benefits of reform.”
Supporters of the cap argued placing a limit on non-economic damages helped cure a healthcare epidemic in the state by halting ever-increasing insurance premiums for medical professionals.
In turn, the stability enticed physicians to flock to Texas in droves, ensuring even rural areas are stocked with capable doctors.
Opponents, on the other hand, contend a $250,000 cap limits a claimant’s justice.
“This is the value of a child’s life – the value of a parent who died in a nursing home because of medical negligence,” Wu said. “I’ve seen people who a lawyer won’t take their case because there’s no recovery.
“Adjusting the cap for inflation is not a novel idea. It’s common sense.”
While Opelt says access to health care has increased at record levels since the passage of medical liability reforms, he also says Texas law still allows med-mal plaintiffs many other avenues for unlimited economic recovery, which includes no limits on past and future medical costs and lost wages.
“Texas shouldn’t link non-economic damages to an economic indicator,” Opelt said. “Since emotional distress, pain and suffering are not influenced by inflation, it does not make sense to link the compensation paid for them to an inflationary adjustment.
“Contrary to the rhetoric, plaintiffs are finding representation and they are getting compensated for their injuries.”
Conversely, Wu argues that because of inflation, $250,000 in 2003 isn’t $250,000 in today’s dollars.
“If you bought a house for $250,000 in 2003 and today it is only worth $180,000, you’d be pretty upset,” Wu said. “You’d be angry at somebody, and you’d be looking to fix that.”
In 2017, the Berkeley Research Group conducted an analysis of closed claims in suits against Texas physicians. Their research showed, based on the most current data available, that the average payout in a high-dollar suit in 2012 was $877,795.
“That’s 13.3 percent less than in 2003,” Opelt said. “Clearly the system has not collapsed.”