Houstonia Magazine had an interesting article about Texas tort reform. In 2008, Stephen DiLeo, his wife Cassy, and the couple’s two sons, Michael and Jonathan, went on a long-awaited vacation together, to the white sands and crystalline waters of Pensacola. On August 4, the day before Stephen and Cassy’s 21st wedding anniversary, 16-year-old Jonathan suddenly began projectile-vomiting, and the family rushed him to a Pensacola ER. There had been no precipitating event, the DiLeos told doctors. In fact, the boy had had no unusual symptoms of late, other than a complaint of double vision, and that had been addressed by an optometrist, who prescribed glasses. Concerned, the Florida doctors suggested a CT scan of Jonathan’s head. It revealed a tumor the size of a ping-pong ball in the pineal region of the boy’s brain. Neurosurgeons at Children’s Hospital told the DiLeos that while young Jon’s tumor was inoperable, chemotherapy might be effective. Indeed, 12 weeks into it, the mass had shrunk by 50 percent. Radiation would be needed next. After researching the procedures available, the DiLeos brought their son to a Texas hospital.
Here, they met a neurosurgeon (whom they also cannot name) with a very different view of Jon’s condition. His belief, contrary to that of the Louisiana doctors, was that the tumor was indeed operable, especially now that it was smaller in size. In fact, he felt he could “potentially cure” the boy, Stephen remembers. There were risks, of course. Fluid might build up in Jon’s brain after the operation, for one. The surgeon assured the DiLeos that a shunt could be installed, however, if and when fluid build-up became a problem.
According to the DiLeos, the neurosurgeon expressed great confidence in his ability to remove the tumor and cure Jonathan, so the family consented to the surgery. A few days later the tumor was removed and a temporary drain for fluid placed. Four days after the operation, it appeared that fluid was no longer building up in the boy’s head, and so the temporary drain was removed, whereupon he was able to comprehend and respond to questions. Nineteen days after surgery, however, on the morning of December 1, there were ominous signs that fluid had again begun to build up in Jon’s brain. The teen had started having headaches and seizures—both signs of increased intracranial pressure—and his scalp had even begun to stretch visibly.
Nevertheless, neither a shunt nor a second temporary drain was ever installed, according to medical records. After a CT scan revealed an alarming increase in the boy’s intracranial fluid level, a radiation oncologist allegedly phoned Jon’s surgeon and informed him of this development, but the surgeon, apparently unfazed, took no action.
Around 1 p.m., Jon began having unbearable headaches that were unrelieved by medication. He no longer knew where he was, and the left side of his face began twitching. A series of seizures followed, and the boy became unresponsive, at which point he was transferred to the ICU. Jon’s surgeon did not come to see his patient there until around 5 p.m., and then only for a couple of minutes, according to the DiLeos. Jon’s condition began to further deteriorate throughout the evening. The hospital placed emergency calls to his surgeon, but these went unanswered. Finally, around 11 p.m., the doctor did return to the hospital, and after seeing the results of a second CT scan, became convinced that the boy needed immediate surgery to install a shunt. At some point, the DiLeos remember asking him if he’d been in surgery during the five hours they’d tried to reach him that night. No, he said. He’d been at dinner with his family. The surgeon began to operate on Jon, but his efforts came too late. At 3:06 a.m. on December 2, Jon was declared brain-dead. Two days later, he was taken off life-support.
During Jon’s treatment, his parents had taken to reading the neurosurgeon’s progress notes (as former nurses, Cassy says, “we are pretty familiar with charts”). Over and over, they read of the doctor’s plan to install a shunt if Jon exhibited certain symptoms, many of which he had certainly experienced during the last week of his life. But the doctor had neglected to follow his own plan. After their son’s death, the DiLeos tried to reread the surgeon’s notes in Jon’s chart, discovering to their astonishment that all of the notes prior to December 1—the day before Jon’s death—were gone.
There were too many mistakes, too much evidence of negligence and/or incompetence on the part of neurosurgeon, and too much suspicion that either he or someone at the hospital had tried to cover this all up. And so, even as the DiLeos knew it would never bring their son back, they decided to sue the doctor for malpractice. It wasn’t money they sought but justice, and they were confident that in a court of law, justice would prevail.
And perhaps it would have—if Jon’s doctor had committed malpractice in a different state.
Supporters of tort reform in Texas began portraying the state as a “lawsuit mecca” and “judicial hellhole,” wherein “jackpot justice” reigned. Thanks to “frivolous lawsuits” and the lack of caps on punitive damages, so went the argument, high medical malpractice insurance premiums were forcing doctors to either leave the state or retire early. Hence, the shortage of physicians, particularly in rural areas. And among those who continued to practice, said supporters of tort reform, a fear of lawsuits was driving them to order multitudes of tests, many expensive and unnecessary, which meant higher healthcare costs for everyone.
Clearly it was time to rein in the lawyers, and in this cause the insurance companies joined forces with Texans for Lawsuit Reform, a lobbying group founded by four Houstonians: construction magnate Leo Linbeck Jr., homebuilder Richard Weekley, Richard Trabulsi, a corporate attorney (and now owner of the Richard’s liquor store chain), and Hugh Rice Kelly, Reliant Energy’s former general counsel. In 2003, in an astonishing series of victories, the TLR helped persuade the Texas Legislature to pass a bill capping non-economic damages for malpractice victims at $250,000, and $100,000 at certain public hospitals. Restrictions were also placed on contingency fees (in which lawyers are paid a percentage of what their client wins in court, if anything, rather than collect any money up front), and lawyers were prohibited from being reimbursed for expenses until their clients won—if they won. Tort reform advocates got almost everything they wanted from the legislature, and what they couldn’t get from lawmakers they got from the voters.
And so, that September, an amendment to the Texas Constitution known as Proposition 12 was put on the ballot. It was voted down in every major metropolitan area in the state, but the rural counties—convinced they would lose what few doctors they still had—voted in favor. By a razor-thin 1.2 percent margin, Prop 12 became law.
The Dileos weren’t aware of the sweeping reforms in Texas’s civil justice system. It was clear to their lawyer, who had spent 14 years as a neurosurgeon prior to her law career, based on a review of the medical records, that Jon’s surgeon had been negligent.
For starters, Jon had been operated on in a public hospital, of which there are 132 in Texas and six in the Houston area, including some of the largest and best-known. That was important because in Texas, employees of state-run hospitals enjoy the same “sovereign immunity” as police officers, firemen, and other government workers, which is to say that they are almost impossible to sue. These days, if a doctor in Texas misreads a chart or fails to give you a dose of medicine or perform an operation that might have saved your life, it’s considered not negligence but an error of medical judgment. What’s the difference? You can’t sue a doctor for an error of medical judgment.
At any point in the process, there is the option of mediation. Hospitals facing potential suits frequently make offers of settlements to wronged patients, calculating that even an amount far smaller than the $250,000 cap will be enough to make the case go away. Furthermore, at certain public hospitals, damages can be capped at $100,000, and in at least some cases, patients and their loved ones are still responsible for medical bills. In other words, the mediation settlement amounts to something like a discount on botched care, and one that the families are prevented by a gag order from speaking about.
Given the anti-plaintiff provisions that the DiLeos faced, as well as the sovereign immunity granted the doctor, Jon DiLeo would never get his day in court, and the doctor who they believed was responsible for his death would get off scot-free.
Supporters are still calling Prop 12 an unqualified success. In an editorial published in the Austin American-Statesman last year, Brooke Rollins of the Texas Public Policy Foundation, a conservative think tank, claimed that tort reform had not only halted but reversed the exodus of Texas doctors. She predicted that by the end of 2013, Texas would have nearly 60,000 physicians, almost double the number it had had 10 years earlier, and termed it “no coincidence that since 2003 Texas has also distinguished itself as the national leader in job growth.” Tort reform, Rollins wrote, “is not the only reason for the Texas Miracle, but it is a big part of it.”
The American Medical Association states in 2002 there were 221 doctors per 100,000 Texans; in 2011, the last year for which statistics are available, there were 245, an 11 percent increase. Nationally, the mean number went from 288 to 322, and from 417 to 454 in New York. With regard to the latter, New York experienced roughly the same percentage increase in its numbers as Texas over the past decade, which is surprising, since the state already had more than one-and-a-half times as many doctors as us, and, even more surprising—at least to some—has no cap on malpractice damages.
What about the claim that tort reform would bring down health costs once doctors cut down on all those unnecessary tests and insurers lowered their malpractice premiums? Well, in the years following tort reform’s passage, malpractice premiums did decrease around 46 percent, but those savings have not been passed on to patients, according to a 2011 study by the consumer group Public Citizen. And as for the claim that Prop 12 would usher in an era of lower healthcare costs, well, even tort reform’s biggest backers are distancing themselves from that one.
After a 2012 study demonstrated that Prop 12 had done nothing to reduce health expenditures. Inconveniently, the paper unearthed two campaign flyers from 2003, one of which promised “lower costs and more security in our health care system,” and another in which Governor Rick Perry claimed that Texans could “help make healthcare more affordable and accessible” by voting yes. Ironically, says Texas Watch’s Alex Winslow, despite all the havoc Prop 12 has wreaked, the measure has accomplished precious few of its stated aims. “The cost of healthcare in Texas has gone up faster than the national average,” he says, “we’re ranked dead last in terms of quality of care according to the federal government, and access to doctors in underserved communities is still a huge problem.”
Still, Prop 12 has certainly accomplished one of its stated aims: there’s been a big decrease in the number of medical malpractice suits filed. A search of Harris County District Court records reveals that in 2002, the last full year before tort reform, 573 medical malpractice suits were filed in Houston. In 2013, there were 213. Winslow believes that a significant number of patients with meritorious cases simply don’t file them anymore.
Some states have already overturned tort reform on their own. The supreme courts of both Georgia and Missouri have reversed laws passed by their legislatures (they had capped damages at $350,000). In each case, the court ruled that the caps were unconstitutional, robbing juries of their voices. Winslow does not expect the pro-business Supreme Court of Texas to follow suit, and if Greg Abbott is elected governor, there won’t be any winds of change blowing from the executive branch either. After all, roughly 20 percent of the donations to Abbott’s attorney general electoral campaigns came from tort reform supporters.