The article is available in the houston chronicle archives for paid subscribers only. I could not figure out how to copy the link, so I copied the article for you and pasted it below.
Malpractice filings fall after cap / Doctorspredict lower health care bills as law's foes say patientcare suffering
By ANDREW TILGHMAN
Staff
The number of medical malpractice lawsuits filed in Harris County has fallen dramatically since Texas lawmakers imposed a cap six months ago on the amount of money juries can award.
The sharp drop has been welcomed by physicians and insurance companies who backed the $250,000 limit on awards for pain, suffering or other noneconomic damages. Doctors say fewer multimillion-dollar jury awards will translate into lower health care costs and improved patient care.
But lawyers and other opponents of the measure that took effect Sept. 1 say the drop in filings proves the limits are too severe, leaving bad doctors unaccountable for causing deaths or life-altering injuries.
"This is effectively closing the courthouse doors and eliminating the constitutional rights of many victims of medical malpractice ," said Dan Lambe, executive director of Texas Watch, the Austin-based group that rallied against the limits.
In recent years, Harris County averaged 400 to 500 medical malpractice lawsuits. Last year, that figure spiked to 1,154 between January and August, as personal injury lawyers rushed to the courthouse to file under the "old law," which had no limit on jury awards.
But from Sept. 1 to Feb. 29, only 68 medical malpractice lawsuits were filed, according to the Harris County district clerk's office. Statewide figures were not available, because many district clerks do not break down case filings by category.
Some suggest the drop is only the temporary result of lawyers who rushed to file lawsuits under the old law and are now guiding those through the court system.
But personal injury lawyers also say the new law is forcing them to reject cases they once would have pursued.
Attorney Richard Mithoff pointed to a case he recently considered involving a baby blinded at birth because doctors failed to identify a dangerous but treatable eye condition.
Mithoff believes the primary doctor was negligent, but he may not take the case because the costs - investigation, hiring experts and trial preparation - could exceed any award.
"Certainly there are some very meritorious cases like the blinded baby where the expense of bringing the case may outweigh any potential recovery," Mithoff said. "That is a matter the client has to weigh very, very carefully."
Under the new law, jurors have no limits on awards for medical expenses or lost wages caused by errors by a doctor or hospital. But seven-figure verdicts may become rare, since the law limits awards for pain and suffering or punitive damages, attorneys said.
Personal injury attorneys often must invest up to $50,000 or $100,000 to take a case to trial. With prospective returns drastically reduced, some are "turning to do other things, they just don't see a future in it," Robert Talaska, a Houston attorney, said of personal injury law.
Last November, voters narrowly approved a constitutional amendment that makes any legal challenge to the new law nearly impossible.
The amendment was designed in part to reassure insurance companies the cap would be permanent, rendering Texas a safe place to compete for medical liability insurance business.
Despite the amendment and the drop in lawsuits, doctors and hospitals have seen little change in their insurance costs, which they have predicted will eventually fall and create future savings.
The state's largest insurer, Texas Medical Liability Trust, had vowed to lower its rates by 12 percent if voters passed the constitutional amendment.
But several other insurance companies have requested rate increases since the new law took effect, said Jim Hurley, a spokesman for the state Department of Insurance.
The Joint Underwriting Association, which covers doctors and hospitals no other company will insure, requested a 35 percent rate increase last year, which state officials denied.
Another company, GE Medical Protective, has requested a 19 percent rate increase, which remains pending, Hurley said.
Significant savings for doctors and patients may be several years off, he said.
"I kind of liken it to turning a battleship going full steam," Hurley said. "The course is changing, but it happens over time."
Health administrators point to growing competition as a source of optimism that malpractice insurance premiums may fall in the coming months.
Lured by the prospect of stable risks and rising profits, several companies that did not offer medical liability insurance in Texas have started seeking business since the cap took effect.
At least two have started competing here and up to 10 others plan to begin in the coming months, Hurley said.
Doctors and hospitals may begin to reap savings later this year, when they renegotiate their annual insurance policies for the first time under the cap.
"I am hoping we are going to see that at the end of the year when were are doing renewals," said Dr. David Pate, an attorney and chief medical officer for St. Luke's Episcopal Health Systems.
Rate reductions may be slowed by the glut of cases filed in the months before the Sept. 1 deadline.
"Had that rush to the courthouse not occurred, certainly we would have expected rates to come down further and faster," said Jon Opelt, director of Texas Alliance For Patient Access, a Austin-based lobbying group representing doctors, hospitals, nursing homes and health clinics.
"But there is great optimism the market is turning and will continue to turn."
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FEWER LAWSUITS FILED
There was a rush to the courthouse last year just before Texas lawmakers imposed a cap on punitive damages in September. Since the laws changed, the volume of medical malpractice lawsuits filed in Harris County has dropped precipitously.
Jan.-Dec. 2001...441
Jan.-Dec. 2002...550
Jan.-Aug. 2003...1154
Sept. '03 -Feb. '04...68
