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Randy Walton
Randy Walton
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Effects of Medical Malpractice Caps Doubtful

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Texas is seeing the greatest influx of medical doctors it has seen in a very long time. At last count, the state has climbed to 42nd in the U.S. rankings of physician’s per capita, up from a raking of 48 in 2001.

Some attribute the growth to a voter approved constitutional amendment, proposition 12, which was narrowly approved by voters in 2003. Under the new law, any pain and suffering damages received by a victim of medical malpractice cannot exceed $250,000, and economic losses in a wrongful death case are capped at $1.6 million. California has similar medical malpractice caps.

The purported purpose of the caps, in both California and Texas, was to reduce the damages awards, and thus the malpractice insurance premiums that doctors and insurance companies claimed were driving them out of the state. Serious questions remain whether it has worked, or whether it has simply served as a way to protect insurance companies from high payouts.

But there are those who are skeptical about the caps on malpractice.

“We’ve lost our system of legal accountability, said N. Alex Winslow, executive director of Texas Watch, a consumer advocacy group. “Just having more doctors doesn’t make patients safer. It remains to be seen who is coming to our state.”

Demian McElhinny, 33, a former hospice pharmacy technician in El Paso, recently settled claims against a neurological surgeon for spinal surgery that left him disabled and his family impoverished; he said he emerged with “pennies on the dollar.” His wife, Kelly, found work as a school bus driver, he said, while “I’m at home being a housewife to my two boys.”

Mr. McElhinny’s surgeon, Dr. Paul Henry Cho, later admitted to the medical board that he was addicted to a narcotic cough syrup and had written fraudulent prescriptions. Dr. Cho’s license to prescribe drugs was suspended, although it was soon restored, and he moved from El Paso to a hospital in Fort Worth. He did not return a call to his office, and his lawyer declined to comment.

Paula Sweeney, a leading Dallas liability lawyer and a past president of the Texas Trial Lawyers Association, said, “A lot of legislators are aware they went too far in ’03.”

There is an ongoing debate whether malpractice caps work to lower insurance premiums for health care providers. I am one who believes that caps have not had their intended effect, and have served only to prevent juries from fully compensating legitimate victims of medical malpractice.

For more information on this subject, please refer to the section on Medical Malpractice and Negligent Care.