Twenty years ago, my husband, a busy Ob/Gyn, reached the point that he was not able to pay his malpractice premium (six figures) and his office staff – much less take home any income. One evening we discussed whether he was going to have to quit practicing Obstetrics (which was the primary reason for the staggering malpractice rate). Physicians all over the state of Texas faced the same challenges, especially those who provided high-risk services like obstetrics, neurosurgery, emergency medicine, or orthopedics. The problem was that except in wrongful death lawsuits, Texas had no cap on “noneconomic” damages (e.g., pain and suffering or loss of companionship). Without a cap, Texas physicians faced a steady increase in lawsuits – many of them meritless. For more than a decade, I can remember only one six month window when my husband was not dealing with some type of malpractice suit – all of which in his case, were totally meritless. The constant threat of a judgement beyond the limits of his policy controlled the way we handled our finances, such as living constantly “house poor” because it was the only asset we could protect. In 2003 that situation changed thanks to the advocacy of the Texas Medical Association, which worked with the Texas Legislature to pass tort reform laws. This is the 20th anniversary of tort reform in Texas. Because of this change, my husband’s malpractice premiums were cut nearly in half, and he practiced for another decade until his health failed.
The cap on noneconomic damages has made Texas one of the best states in which to practice medicine. It did have one perverse effect. It increased the number of lawsuits over pressure ulcers, and shifted the way that they were represented by plaintiff’s attorneys. The caps do not apply to cases which could be claimed to involve elder abuse. That’s the reason that plaintiff’s websites equate all pressure ulcers with elder abuse. The challenge we face in addressing pressure injuries/ulcers is that while they could be associated with elder neglect, they also happen for medically unpreventable reasons due to hemodynamic factors such as low mean arterial pressure. Until we define the hemodynamic thresholds involved in the development of medically unpreventable pressure injuries/ulcers, nursing homes, hospitals and doctors will be liable for all of them. That remains one of the biggest malpractice problems in Texas and the nation.