TheMonitor.com, September 17, 2006

McALLEN — Family ties and the desire to practice in a medically underserved community lured back obstetrician and gynecologist Dr. Javier Cárdenas to the Rio Grande Valley from the Dallas-Fort Worth area.

Still, his colleagues questioned the move’s logic.

“There were other doctors in Dallas and even in the Valley who said I was crazy for coming down here because of the high liability rates,” said Cárdenas, who relocated to McAllen in March 2005. But after Proposition 12 passed through the state Legislature in 2003, “at least (doctors) had a fighting chance.”

The amendment to the state constitution gave the Legislature authority to set limits on non-economic damages awarded to plaintiffs in civil lawsuits.

Not everyone is as sure as Cárdenas of its benefits, though.

This week tops off the three-year anniversary of the passing of Proposition 12, which placed a cap on patient claims of pain, suffering or emotional distress.

The amendment still stirs controversy between the medical community that generally supported the measure and patient advocacy groups and lawyers who disparaged it.

Valley physicians say House Bill 4’s passing, followed by Proposition 12’s, has reduced frivolous lawsuits against doctors and hospitals and caused physicians’ professional liability insurance premiums to drop. This allows them to serve more critical patients, as well as recruit new physicians to the Valley, they say.

But the changes jeopardize patients, because it is more difficult to hold a doctor accountable for medical errors, said Alex Winslow, executive director of Texas Watch, a non-profit, Austin-based consumer advocacy group that opposes Proposition 12.

Lawyers are also shying away from cases, particularly for low-income populations, if there is no significant financial gain, he said.

“The way caps are designed, it places a value on human life,” he said. “The banker will able to gain more because it is more financially viable to bring a suit on his behalf.”

House Bill 4 and Proposition 12 set a limit as to how much a patient can receive in a lawsuit: $250,000 maximum return if doctors are at fault, to $750,000 if a combination of doctors and hospitals are at fault. Total damages in a wrongful-death case are capped at $1.5 million plus medical bills.

“The Valley has been one of the greatest beneficiaries of these reforms,” said Jon Opelt, executive director of the Texas Alliance for Patient Access in Austin. The alliance is a coalition of doctors, hospitals, nursing homes, healthcare providers and medical liability insurers.

“Since the passage of Prop 12, docs are no longer threatening to leave and Cameron County has since had its greatest growth in physicians ever.”

As of May, more than 170 physicians have started practicing in Hidalgo and Cameron counties since the so-called tort reform legislation, he said. Medical specialties added include pediatricians, gastroenterologists, internists and obstetricians.

Yet, 105 physicians joined the counties’ ranks between 2001 and May 2003, when medical malpractice was still an issue.

Low medical malpractice rates have attracted the 170-plus doctors, Opelt noted. New insurance companies are on the market and the Texas Medical Liability Trust, the state’s largest health care liability provider, announced Tuesday they are reducing premiums 7.5 percent for all specialties beginning in January.

That will total a 29. 5 percent drop in premiums mandated by the provider since tort reform passed.

However, patients have yet to see the tangible results, Winslow said.

Roughly 60 percent of the 254 Texas counties did not have an ob/gyn prior to the passing of Proposition 12, and the number remains unchanged, he said.

“The real issue is whether patients have seen improvement in health care and there’s no evidence patients have seen improvements in the cost, quality or access to health care in the last three years,” Winslow said. “We’d like to see more patients with health insurance and we’d like to see a larger number of doctors going to underserved areas.”

A recent survey conducted by the Texas Medical Association reveals 90 percent of physician respondents rate today’s professional liability climate for Texas doctors as “much better” or “better” than in 2003.

And 87 percent of those who tried to recruit found the process easier since 2003; 13 percent found it more difficult.

The findings are based on completed surveys from 1,154 physician members of the medical association. Done in late August, the survey was mailed to 10,000 randomly selected physicians.

While a May study by San Francisco-based Pacific Research Institute ranked Texas No. 1 in the nation in tort reform, the Valley and Gulf Coast remain nationally known as judicial “hell holes” for doctors facing lawsuits.

These areas are simply known to field juries that give enormous rewards to plaintiff, said the study’s author, Lawrence J. McQuillan, when the information was released in May.

“There’s no limit on compensation for lost wages, future wages, custodial care, medical bills, rehab,” Opelt said. “So, one could still receive a multi-million dollar verdict today even with the reforms in place.”

But Brownsville lawyer Anthony Troiani admits he is “more selective” on cases since tort reform passed.

“Now, I’m getting calls from people, especially those who don’t have insurance or are low-income, that want me to send letters to hospitals and physicians because they feel they’re not having proper care,” he said.

“I’m getting calls from people who say, ‘What can I do? Why can’t you take my case?”

Jennifer C. Smith covers health, environment and science issues at The Monitor. She can be reached at (956) 683-4462. For this and more local stories, visit www.themonitor.com.