Rush to the courthouse delays benefits of Prop. 12

By Bruce Ehni, M.D. and Jon Opelt
The medical liability crisis is real and deep; even with the passage of Proposition 12 it will not be alleviated overnight.

Unfortunately for patients and doctors, the market doesn’t change from crisis to stability instantly. We remain in a crisis situation, unable to fully staff trauma centers, deliver care to rural Texas or provide any liability coverage whatsoever to half the state’s non-profit nursing homes.

The market is still reeling from an avalanche of suits filed in anticipation that lawmakers would cap non-economic damages.

While lawmakers were passing a damage cap and voters were affirming it, trial lawyers were opening the lawsuit spigot full force.

The equivalent of four years of medical liability lawsuits were dumped on Harris County courts in the first nine months of this year.—prior to the effective date of the medical liability limits. This pattern of flooding the courts was repeated statewide.

All of the cases have to be defended, and all are governed under the old law, which imposes no cap.

Did Houston doctors suddenly become inept in 2003? Not likely. Trial lawyers rushed to the courthouse and recklessly filed suit in most any healthcare case that resulted in a bad outcome. Evidently, little effort was made to investigate the merits of these claims.

Here is just one example:

A lady went to a Houston family doctor and complained of a side ache. X-rays showed no abnormalities and the soreness was treated with appropriate medication. The patient was instructed to return for a follow-up consultation if the pain persisted. The doctor even sent a notice to the woman’s home restating this point. The patient did not call the doctor or return.

Eighteen months later, the lady developed a tumor on the opposite side of where she had originally experienced pain. She sued the doctor for failure to follow up.

Like so many others who rushed to the courthouse, her lawyer disregarded Texas law and failed to provide the doctor with 60-day written notice of intent to file suit. At the very least, the judge should call time out and give both parties 60 days to talk it out in hopes of avoiding litigation. As the case presently stands, the doctor will have to spend $30,000 or more to answer the allegation in court.

Whether many of the “rush to the courthouse” cases have merit or not, it will likely take at least $60 million in attorney fees alone to defend the barrage of Houston healthcare lawsuits.

Without the rush to the courthouse, liability rates would have gone down further and faster.

But here’s the good news: Because Proposition 12 passed; the only two neurosurgeons in Bryan-College Station will keep their doors open. Because of the passage of Proposition 12 most Texas doctors will be able to find insurance and remain in practice. Because of the passage of Proposition 12, medical specialists will be less likely to leave Texas and young doctors, especially those in high-risk specialties, will be more apt to choose Texas as a place to establish their practice. Because of the passage of Proposition 12, four non-profit nursing homes in Austin and San Antonio won’t close and 610 elderly patients, in these two effected communities alone, will not be put out on the street.

Important inroads are also being made to get more doctors into rural Texas communities. To keep doctors there, the Office of Rural Community Affairs is proposing a program whereby staff resident doctors with medical licenses pinch hit for rural doctors. Additionally, more dollars will now be available to help young doctors pay off part of their student loans for each year they work in an underserved area. This is a significant development being that the average medical student today graduates with school debt of over $100,000.

It is encouraging that despite the huge backlog of healthcare lawsuits, the state’s largest insurer of physicians, Texas Medical Liability Trust, has announced a rate cut and a second liability carrier, The Doctors’ Company, has canceled a scheduled rate increase.

Aside from these expressions of faith, it’s going to take a couple of years for the full benefits of Proposition 12 to materialize. In the meantime, we remain cautiously optimistic that the market will begin to turn in the New Year.. And that’s good news for patients and doctors.

Dr. Bruce Ehni is a Houston neurosurgeon. Jon Opelt is the Houston director of Citizens Against Lawsuit Abuse and can be reached at sosueme@

Citizens Against Lawsuit Abuse

2500 City West Boulevard, Suite 300 • Houston, Texas 77042
E-mail: sosueme@ • Administrative: (713) 267-2302 • Fax: (713) 267-2267