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In the Supreme Court of Florida IN THE SUPREME COURT OF FLORIDA ESTATE OF MICHELLE EVETTE MCCALL, ET AL., Plaintiff/Appellant Case No. SC11-1148 v. L.T. Case No. 07-00508CV-3-MCR/EMT UNITED STATES OF AMERICA Defendant/Appellee _____________________________________________________________ BRIEF OF AMICUS CURIAE TEXAS CIVIL JUSTICE LEAGUE IN SUPPORT OF APPELLEE UNITED STATES OF AMERICA ________________________________________________________________________ † GEORGE S. CHRISTIAN GEORGE S. CHRISTIAN, ATTORNEY-AT- LAW 400 West Fifteenth Street, Suite 400 Austin, Texas 78701 Telephone (512) 791-1429 Attorney for the Texas Civil Justice League † Motion for Pro Hac Vice Admittance granted July 8, 2011 1 TABLE OF CONTENTS TABLE OF AUTHORITIES ………………………………………………........... i STATEMENT OF IDENTITY AND INTEREST OF AMICUS CURIAE …………………………………………………….......... 1 SUMMARY OF ARGUMENT ……………………………………………........... 2 ARGUMENT ............................................................................................................3 The cap on noneconomic damages adopted in Texas in 2003, together with related reforms, has resulted in a significant, continuous, and ongoing reduction in medical liability insurance premiums and a corresponding increase in access to health care in medically underserved regions of the state. …………………………........ 3 CONCLUSION ……………………………………………………………..........14 CERTIFICATE OF SERVICE ……………………………………………..........15 CERTIFICATE OF COMPLIANCE WITH FONT REQUIREMENT ….......... 16 2 TABLE OF AUTHORITIES Constitutional Provisions Tex.Const.art. III, §66 (added Sept. 13, 2003) ……………………………...9 Journal Articles Ronald M. Stewart, M.D., Kenneth R. Sirinek, M.D., Daniel L. Dent, M.D., Malpractice Risk and Cost Are Significantly Reduced After Tort Reform, J Am Coll Surg 2011; 212: 463-469 ………………….9 Law Review Articles Michael S. Hull, et al., House Bill 4 and Proposition 12: An Analysis With Legislative History, 36 Tex. Tech L. Rev. 1 (2005) …………………..3 Legislative History and Reports Hearings Before the Special Comm. on Prompt Payment of Health Care Providers, 77th Leg., R.S. (Aug. 15, 2002) ………………….7 Report of the Senate Special Committee on Prompt Payment of Health Care Providers, 77th R.S. (Nov. 2002) …………………………... 5 Statement of Senator Bob Deuell, Debate on Tex. H.B. 4 on the Floor of the Senate, 78th Leg., R.S. 5 (May 16, 2003) ………………. 6 Tex.Senate Finance Subcomm. On Rising Healthcare Costs, 77th Leg., Interim Report, 78th Leg., R.S. (Jan. 2003) …………………… 6 Tex.Senate Finance Subcommittee on Trauma Care, 77th Leg., Interim Report …………………………………………………………… 6 The Medical Malpractice & Tort Reform Act of 2003: Hearings on Article 10 of Tex. H.B. 4 Before the Senate State Affairs Comm., 78th Leg., R.S. 21 (Apr. 16, 2003) ……………………………………….. 7 News Reports and Press Statements Am. College of Obstetricians & Gynecologists, Medical Liability Survey Reaffirms More Ob-Gyns Are Quitting Obstetrics, July 16, 2004 ……………………………………………………………. 6 i Am. College of Obstetricians & Gynecologists, Nation’s Obstetrical Care Endangered by Growing Liability Insurance Crisis: ACOG Announces “Red Alert” States Where Care Is Most at Risk, May 6, 2002 ………………………………………………………………. 6 Cindy Van Auken, Malpractice Insurance Biting Doctors, Waco Trib.-Herald, Apr. 21, 2002 ………………………………………………. 5 Leigh Hopper, Hospital Takes Permanent Maternity Leave: High Costs Force Obstetrics Unit to Close, Houston Chron., Oct. 14, 2002 ………… 5 Office of Governor Rick Perry, Gov. Perry Designates Emergency Issues for 78th Texas Legislature: Homeowners Insurance, Medical Malpractice Reform Moved to Top of Legislative Agenda, Jan. 24, 2003 ……………………………………………………………… 8 Office of Governor Rick Perry, Gov. Perry Says Texas Must Address Medical Lawsuit Abuse Crisis, Apr. 4, 2002 ……………………………... 3 Patricia Rivera, Doctors Protest Rising Malpractice Premiums, Dallas Morning News, Apr. 9, 2002 ……………………………………... 5 Session Laws The Medical Malpractice & Tort Reform Act of 2003, 78th Leg., R.S., ch. 204, §10.11, 2003 ………………………………………………. 8 State Agency Reports Texas Department of Insurance, Medical Malpractice Insurance: Overview and Discussion, February 12, 2003 …………………………. 3, 4 Texas Department of Insurance, Professional Liability Admitted Carriers in Texas (http://tdi.state.tx.us/commercial/admitcar. html#surgeons); accessed June 30, 2011 ………………………………... 11 State and National Association Reports National Association of Insurance Commissioners Report on Profitability by Line by State (2000) ……………………………………... 4 Office of the Assistant Sec’y for Planning & Evaluation, U.S. Dep’t of Health & Human Servs., Addressing the New Health Care Crisis: ii Reforming the Medical Litigation System to Improve the Quality of Healthcare (2003) …………………………………………………….… 7 Texas Hospital Association, Texas Hospitals Reinvesting Savings from Medical Liability Reform: THA survey shows patients benefit from more specialists, expanded services, Sept. 10, 2008 …………… 13, 14 Texas Medical Association, Proposition 12 Produces Healthy Benefits, Apr. 4, 2011 (http://www.texmed.org/Template.aspx?id=5238), accessed June 30, 2011 …………………………………………………. 9, 11 14 Texas Medical Association, Rate Cuts by Texas Medical Professional Liability Carriers, Dec. 8, 2010 (http://www.texmed.org/Template. aspx?id=4753&terms=Prop+12), accessed June 30, 2011 ………………….. 10 Texas Medical Association, Texas Liability Rates Dropping After Prop 12, Apr. 26, 2011 (http://www.texmed.org/Template.aspx?id =3868&terms=Prop+12), accessed June 30, 2011 ………………………….. 10 Statutes Tex.Civ.Prac. & Rem. Code Ann. §74.301 (2011) ……………………………. 9 iii STATEMENT OF IDENTITY AND INTEREST OF AMICUS CURIAE The Texas Civil Justice League (“TCJL”) is a non-profit association of Texas businesses, physicians, hospitals, professional and trade associations, and individuals dedicated to the maintenance of a fair and balanced civil tort system. It represents both insurers and insureds and has a vital interest in an affordable and efficient health care liability insurance market and the availability of and accessibility to high quality health care in all regions of Texas. Moreover, TCJL recognizes the business climate of the state and the quality of life of its citizens depends upon a health care system that is second to none. No person or entity has paid or will pay for the preparation of this brief. 1 SUMMARY OF ARGUMENT In Texas, medical liability reform, the cornerstone of which is a $250,000 cap on noneconomic damages for claims arising from medical negligence, has since its adoption in 2003 resulted in a direct, substantial, and sustained reduction in medical malpractice insurance costs and a correspondingly direct, substantial, and sustained increase in the number of physicians providing critical health care services, including high-risk specialty care, in previously unserved and underserved areas of the state. 2 ARGUMENT The cap on noneconomic damages adopted in Texas in 2003, together with related reforms, has resulted in a significant, continuous, and ongoing reduction in medical liability insurance premiums and a corresponding increase in access to health care in medically underserved regions of the state. The 2003 Texas medical liability reforms saved the state from a collapse of its healthcare system. One need only compare the legislative objectives of the reforms to the documented results since their enactment in 2003 to prove this point.1 Data collected and published by the Texas Department of Insurance (TDI) found that between 1999 and 2002, medical malpractice premiums increased by an average of 64% for commercial insurers. For the Texas Medical Liability Trust, a non-profit organization that underwrites malpractice policies for more than 10,000 physicians, premiums more than doubled during the same period. At the same time, insurers’ average claim costs statewide grew by more than 11%, while claims costs in some Texas counties skyrocketed by more than 60%. Claims frequency in the Rio Grande Valley as a whole ran 211% above the statewide average.2 Because of dramatically rising claims frequency and severity, medical liability insurers filed substantial rate increases between 1999 and 2003. According to the TDI data, rate increases by commercial insurers ranged from a low of 22.5% 1 For a more comprehensive account of the history of medical liability leading up to the 2003 Texas reforms see Michael S. Hull, et al., House Bill 4 and Proposition 12: An Analysis With Legislative History, 36 Tex. Tech L. Rev. 1 (2005). 2 Texas Department of Insurance, Medical Malpractice Insurance: Overview and Discussion, February 12, 2003. 3 to a high of 101.5%, with the vast majority of the increases occurring in 2001 and 2002. TMLT increased rates during this period by more than 147%, including a 41.9% increase in 2000, a 32.6% hike in 2001, and another 18.7% in 2002. While these average rate changes reflect physician costs across the board, increases within specific medical specialists practicing in certain regions of the state proved far more dramatic. For example, in 2002 an ob/gyn in McAllen, Texas paid up to $131,000 for the same liability coverage that cost an ob/gyn in Austin $93,000. The same was true for anesthesiologists, neurosurgeons, and even family physicians who performed no surgery.3 Despite higher rates and increased premium dollars, medical liability underwriters in Texas faced mounting losses and began leaving the state in record numbers. In a 2000 study the National Association of Insurance Commissioners found that Texas was the least profitable of the top fifteen states in the nation
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