May 2022 • DALLAS MEDICAL JOURNAL | 3
I joined (purchased a policy from) the TMLT,
which is the largest provider of physician liability
insurance in Texas. The TMLT was formed
in 1979 by a group of physicians who wanted
to create a physician-owned liability company
that would support and protect physicians.
The TMLT has a policy of vigorously defending
physicians against claims, particularly in the
courtroom. Prior to The Texas Miracle, TMLT
defended and won 90% of claims that were
taken to trial in 2002. Furthermore, the average
cost of defending all claims in 2002 was
$22,425.
Many claims at that time were frivolous
and were made without an expert witness
to review a case to determine if malpractice
had occurred. It costs less to settle a frivolous
claim than to defend it. Let me explain using
a non-malpractice example. About 10 years
ago, a friend’s son was in a minor automobile
accident, and by minor, I mean a low-velocity,
barely-hit-the-bumper, get-out-of-the-carand
everyone’s-okay, just-exchange-information
type of accident. My friend received
a call from the husband of the owner’s car,
who stated that his wife had been injured,
and he was going to potentially fi le a lawsuit.
The car-driver’s husband was apparently a
plaintiff attorney. The plaintiff attorney knew
that the insurance company would settle if
threatened. And that is exactly what they did.
My friend’s insurance company “settled” the
threat of a lawsuit for $5,000 instead of trying
to fi ght the frivolous claim.
TMLT and others would spend thousands
of dollars defending a frivolous claim, then
learn that the claimant couldn’t even fi nd an
expert witness before the Tort Reform Act of
2003 was passed. Since that time, a claimant
needs to have an expert witness that will write
a letter asserting that a physician practiced
below the standard of care before a suit can
be fi led.
TAPA: Texas Alliance for Patient
Access
Due to the explosion of lawsuits in the 1990s,
and the increasing cost of premiums, Texas
was having diffi culty attracting physicians
to practice in our state, and ultimately this
made access to physicians and medical
care in general more challenging. In January
2002, the TMLT, Texas Medical Association,
and Texas Hospital Association created the
Texas Alliance for Patient Access (TAPA), which
ultimately lobbied the Texas legislature to
pass tort reform.
Many of the reforms that passed in The
Texas Miracle were based on similar reforms
passed by — believe it or not — California: the
1975 MICRA, or the Medical Injury Compensation
Reform Act. Among other ideas, the
$250,000 cap on noneconomic damages was
a key measure passed. And furthermore, this
was not pegged to infl ation, so the same cap
in 2003 applies today in 2022.
Access to physicians in rural areas was
greatly aff ected, particularly in South Texas.
The White Coat Invasion
In 2003, the Texas Medical Association Alliance
organized First Tuesdays at the Capitol,
a grassroots eff ort by physicians to meet with
our legislators during the fi rst Tuesday of the
month of each legislative session. Physicians
from all over the state, wearing our white physician
coats, converge on the Texas Capitol to
meet with our representatives and senators to
educate, advocate, and discuss pertinent legislative
issues that are important to medicine.
The initial impetus for the White Coat Invasion
was to advocate for Tort Reform.
Texans for Lawsuit Reform
After the passage H.B. 4, I received a letter
from the organization Texans for Lawsuit
Reform (TLR). I was unaware of TAPA at the
time and decided to attend the meeting
thinking that I would be there among many
of my colleagues. Much to my surprise, there
were few physicians present, maybe only two
or three, including myself. Most of the attendees
were businessmen. After looking around,
I eventually introduced myself to the host
and explained that I was a physician and was
surprised that so few physicians were present.
Texans for Lawsuit Reform was (and is)
predominantly a group of businessmen that
supported tort reform from a business liability
perspective. The host explained to me that he
got involved with tort reform because he was
an owner of a laundromat that had a patron
robbed by an unknown thief; the patron
sued the laundromat on the basis that there
was no security and the laundromat ultimately
had to settle the suit. The owner of the
laundromat didn’t feel like he should be held
liable for not having security, which would be
cost-prohibitive for a typical laundromat. Until
I met this group of individuals, I thought tort
reform was passed primarily for doctors, but
in addition tort reform passage helped many
businesses in Texas.
Apple Store in Collin County?
Have you ever been to an Apple Store
in Collin County? If you did, it was probably
before 2019. Two stores were closed at
Stonebriar Centre and The Shops at Willow
Bend. Why did this happen? Was the rent too
high? Were the demographics unsuitable in
those neighborhoods? Or did they close so
that Apple could avoid being sued (for patent
infringement, or any other cause) in the US
Eastern District that is known to be a plaintiff -
friendly venue?
Playing Defense
Since the passage of H.B. 4, there are
dozens of bills fi led by plaintiff attorney
groups that intend to chip away at provisions
that protect physicians and businesses
from frivolous lawsuits. Playing defense is not
exciting work from an advocacy perspective
but is extremely important work necessary to
maintain the healthy business climate that
Texas has achieved.
Currently, there is a movement to change
the $250,000 cap on noneconomic damages.
There has been litigation in this matter
challenging the constitutionality of the cap
that thus far has not succeeded. If this cap is
removed, physicians and businesses will see
our insurance premiums rise.
What The Public Does Not Know
The general public is not aware that
physicians have limits of liability on our malpractice
policies. From my perspective, the
general public believes that liability policies
are limitless because of the occasional high
multimillion-dollar judgment that receives
media coverage. Physicians’ personal assets
are a potential target for claimants, although
admittedly judgments rarely attack physicians’
personal assets. Regardless, there is no
legislative regulation that protects physicians’
personal assets from litigation, except for our
personal residence and qualifi ed retirement
plans. While the average cost of a claim is a
few hundred thousand dollars, a catastrophic
claim could potentially result in bankruptcy
because personal assets are simply not protected.
Most physicians in Texas have liability
coverage of $200,000/$600,000 per year,
meaning that a claim is limited to a maximum
of $200,000 per claim with up to three