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TAOG Executive Office Karen O'Briant 141 Idlewild Creek Road Sweetwater, Texas 79556 (325) 235-1959 FAX: (325) 235-4687 TOLL FREE (866) 935-1959 TAOG 
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| (6-15-11) TAPA RECAP OF LEGISLATIVE SESSION: HOW DID TORT REFORM FAIR?.... |
You are here: Home > (6-15-11) TAPA RECAP OF LEGISLATIVE SESSION: HOW DID TORT REFORM FAIR?....
RECAP: END OF SESSION REPORT
TAPA (Texas Association for Patient Access) 6-15-11
--TEXAS MEDICAL LAWSUIT REFORMS REMAIN INTACT
For the fourth successive legislative session, the state’s 2003 medical lawsuit reforms emerged unscathed. Many of the challenges we expected never materialized or they were defeated as amendments.
The Texas Department of Insurance Sunset Bill (HB 1951) passed with no harmful amendments thanks to the good work of Sen. Glenn Hegar and Rep. Larry Taylor who kept the bill clean. Gov. Perry’s loser pays bill (HB 274) will not harm but could help health care providers. The bill provides for early dismissal of meritless lawsuits and more appeals from pretrial rulings when there is uncertainty about legal issues. Further, the loser pays bill protects non-parties from facing revived claims that should have been time barred and permits defendants to trigger the offer of settlement rule if they choose. We have provided an analysis of the loser pays bill as an attachment.
Two key developments occurred in the off-session that took the steam out of the trial lawyers’ planned assault. First, and most unexpected, Republicans picked up 22 seats garnering them a super majority in the House. Secondly, the TAPA lobby team visited with every House and Senate member in the interim extolling the benefits of our hard-fought gains and pointing out the flaws in the trial lawyers’ argument. Thanks to many of our TAPA members who joined us on several of those legislative visits.
Before the session began we knew where every legislator stood on preserving our state’s landmark reforms and we had already rounded up blocker votes to defeat harmful legislation.
--HOSTILE INTENTIONS
In September we were told that the trial lawyers were coming after the cap. We knew this because the former chair of the House Judiciary and Civil Jurisprudence Committee told us as much. Chairman Hunter also told us to expect attempts to:
· Weaken emergency care protections,
· Permit the admissibility of only the medical bills actually incurred, and
· Mandate minimum levels of insurance coverage.
And then, the November general election produced a substantial shift in the Texas House. The trial lawyers recoiled, moving from an offensive to a defensive posture. The only serious attacks we faced came in the form of amendments that were summarily defeated.
Interestingly, the trial lawyers actually signed off in support of the loser pays bill as did TAPA. Perhaps the trial lawyers found it best to agree to a negotiated bill in the regular session rather than face a stiffer bill in special session where they wouldn’t have the benefit of blocker votes.
--POSSIBLE INTERIM CHARGES
TAPA is considering seeking interim charges on strengthening the state’s benevolent gestures bill and providing protections for care rendered during a declared disaster. Current law distinguishes between expressions of remorse and empathy, which are inadmissible, and expressions of fault, which are admissible. However, the distinction, so clear on paper, is not clear in actual practice. If the physician says, “I’m sorry” is she expressing regret or fault? It is the fact of the distinction itself that makes the current law unhelpful. It is also the reason why we might choose to seek an interim charge in hopes of improving the free flow of communication between doctor and patient.
LOOKING TO NEXT SESSION
Every legislative session is unique. All 31 state senators will be up for re-election in 2012 and most observers expect there will be some changes in leadership positions in the 2013 session. It is unlikely the House will return with such a large Republican majority.
KEY BATTLEGROUND MOVES TO THE COURTS
We are thankful that the Legislature chose to protect its landmark reforms but mindful that there are many aspects of Texas medical liability law that remain unresolved. The issues that have been resolved are mostly of a reporting and discovery nature, influencing the number of claims and suits filed. The unresolved issues tend to deal with total damages and the value of cases and they are discussed in an attachment. Chief among the unresolved issues is the non-economic cap, the lynch-pin of our reform package.
So, while we are encouraged by this past session, we are facing plenty of appellate issues in the courts.
TAOG is a member of TAPA