Doctors hope new law starts trend for better care

DALLAS -- Now that Texas voters have approved limits on malpractice lawsuit awards, Dr. Carlos De Juana looks forward to greeting his patients without simultaneously worrying that they might become courtroom enemies.

The McAllen, Texas, urologist also hopes there will be no more need for "overkill" in diagnosis -- when every headache demands a CAT scan and common colds prompt an X-ray.

"The doctor is thinking that any patient with a complication is an adversary," De Juana said. "If we can practice in a more rational way without fear of being sued, that will bring down the cost of medicine."

Texas doctors hope last month's narrow passage of Proposition 12, a law that gives the state legislature authority to cap non-economic damages, will make it easier and more economical for them to practice medicine.

Texas is one of a few states that have recently tackled soaring medical malpractice claims and the booming malpractice insurance rates that accompany them. Other states have adopted similar laws this year, including Idaho, Oklahoma, Florida and West Virginia, following Mississippi and Nevada in 2002. And President Bush is pushing Congress to pass legislation that would also limit damage awards in medical malpractice lawsuits.

Texas is one of 19 states considered to be in a "full-blown" medical liability crisis by the American Medical Association. Crisis states had numerous physicians either retire, leave high-risk practices or change practices because they feared litigation. These states also have high malpractice insurance premiums, an increase in jury awards and settlements, and numerous lawsuits.

The Association of Trial Lawyers in America, however, says laws capping medical malpractice claims may only benefit insurance companies without driving insurance costs down. And, they say, limiting damages only punishes the most severely injured.

The association cites the case of Alan Cronin, 42, of Simi Valley, Calif., who underwent a hernia operation and developed an infection in the hospital. The infection went unnoticed and when Cronin returned to the hospital he quickly fell into a coma, according to Carlton Carl, spokesman for the lawyers' association.

Cronin's infection progressed into gangrene and, as a result, Carl said he awoke from his coma with all of his limbs amputated.

"His case was so outrageous the insurance company actually settled with him, but under the law he was only entitled to $250,000," Carl said.

Instead of making laws to cap damages, Carl suggested trusting jurors to continue to make wise decisions on awarding damages. Rarely do jurors award big settlements for relatively minor damages, he said.

"A jury is not going to award somebody $250,000 or more for a scar or a broken limb," Carl said. "It's just not going to happen."

Bush's proposal models California's 1975 Medical Injury Compensation Reform Act, which puts a $250,000 cap on non-economic damages, or what a patient could collect for pain and suffering. According to the AMA, such a law has saved California physicians $1 billion in liability premiums each year.

In Florida, Gov. Jeb Bush signed a medical malpractice bill in August that limits a doctor's liability for non-economic damages in most medical malpractice cases to $500,000. A medical facility's liability will be limited to $750,000 in most cases.

Medical malpractice reform was largely prompted by some doctors' decisions to stop or greatly curtail practicing medicine because it has become too risky or too expensive. Most vulnerable are specialty practices such as obstetricians, neurosurgeons and trauma physicians.

In the short term, Texans are watching as insurers consider whether to reduce premiums.

One carrier, Texas Medical Liability Trust, announced before the Sept. 13 vote it would cut rates by 12 percent on Jan. 1. Two others, GE Medical Protective of Fort Wayne, Ind., and The Doctors Co. of Napa, Calif., are considering similar cuts.

Officials at the Texas Department of Insurance say they have received inquiries from insurance carriers thinking about returning to Texas after the new law was enacted.

After experiencing malpractice premium increases for years -- sometimes doubling from the year before -- doctors say the prospect of falling rates could help offset limited payments from government-run health plans.

"This is going to breathe some life back into a rather depressed profession with respect of taking some of the pressure off," said Dr. Charles W. Bailey Jr., president of the Texas Medical Association. "We won't feel the Medicaid cuts as badly if we can save some money on medical malpractice insurance."

Bailey and others said lower insurance rates will eventually mean more doctors for patients. With the fear of career-ending lawsuits diminished, they said, small towns and hard-to-staff emergency rooms may again attract doctors to work there.