New Study Crushes Key Claim in Federal Medmal Debate (updated May 23)

Andrew Cochran

Contributor

1 CommentPrint ArticleSubscribe

It's an article of faith among those who propose federal limits on awards in medical malpractice lawsuits. They always proclaim that the Texas state law limiting such awards resulted in thousands of doctors moving to the state. Examples:

"This last year, 21,000 more physicians practicing medicine in Texas because they know they can do what they love and not be sued." Texas Gov. Rick Perry, August 17, 2011.

"That's why some states, including my home state of Texas, have enacted tort reform to limit the amount of damages that can be awarded for pain and suffering. The result? More than 14,000 doctors have returned to Texas or set up new practices in the state." Rep. Lamar Smith, chairman of the House Judiciary Committee, March 8, 2010.

"Because Texas adopted comprehensive reform in 2003, it now has more obstetricians and emergency physicians and lower medical liability premiums." Rep. Fred Upton, chairman of the House Energy & Commerce Committee, in statement on May 10, 2011.

BUT a new study crushes that claim and endangers one of the key pieces of empirical proof cited over and over again by proponents of unconstitutional federal medical malpractice limits and broader tort reform bills. The study, "Does Tort Reform Affect Physician Supply? Evidence from Texas," concludes that, "After tort reform was enacted, proponents claimed there had been a dramatic increase in physicians moving to Texas due to the improved liability climate. We find no evidence to support either claim. Physician supply was not measurably stunted prior to reform, and did not measurably improve after reform. This is true whether one looks at all patient care physicians in Texas or at high-malpractice-risk specialties."

The authors continue: "There is no evidence that the number of physicians per capita practicing in Texas is larger than it would have been without tort reform. Any effect of tort reform is too small for us to measure, against the background of other, larger forces affecting physician supply, both in Texas and nationally."

The study is so powerful in its presentation of data that Ted Frank, longtime critic of the plaintiffs' bar, concluded that, "I, for one, am going to stop claiming that Texas tort reform increased doctor supply without better data demonstrating that. More study is needed to explain Black/Hyman/Silver's counterintuitive result, and partisans on both sides need to be more conservative with their policy claims." Good enough for me.

This is an enormous break in the tort reform paradigm. It's as important on the empirical side as the legal statements against federal tort reform by libertarians and conservatives such as Randy Barnett, Sens. Tom Coburn and Mike Lee, Rob Natelson, and Tea Party leaders such as Judson Phillips. Just getting to "no clear evidence in the data" strips Big Medicine and its allies of an important rhetorical device in their pursuit of unconstitutional special interest legislation. Now, not only can they not cite any current conservative scholar in favor of H.R. 5, they can't honestly use the "More Docs in Texas" claim.

UPDATE, May 23: I discussed this in a radio interview on the nationally syndicated "What's Up" radio program, hosted by Terry Lowry and broadcast on Sirius Satellite Radio and on 12 FM radio stations. You can listen to Segment 1 here and to Segment 2 here.