Understanding Tort Reform in Texas

August 2020

Robert Hancock, DO, FACEP
TCEP President

As the TCEP representative on the board of the Texas Alliance for Patient Access (TAPA), I have learned an incredible amount about the creation and defense of tort reform in Texas. In 2001 TAPA was formed with a sole mission of passing comprehensive medical malpractice tort reform in Texas. At the time, Texas had a relatively low standard of proof (simple negligence) and no cap on non-economic (punitive) damages. Lawsuits were widespread against physicians and many of these were totally frivolous. Physicians, especially high-risk specialties, were leaving Texas and patients were suffering.

TAPA was formed and consists of members from medical practice, liability insurance, hospitals, nursing homes, etc. They began working quickly in 2001 to attempt to get legislation passed in 2003. One of the big issues was placing a cap on non-economic damages, and this created a huge problem. If the tort reform law was passed then the cap would easily be challenged on a constitutional basis. TAPA, TCEP, and other members pushed legislators for a constitutional amendment which would protect the cap on non-economic damages. As a result, Proposition 12 was placed on the statewide ballot. Proposition 12 would amend the Texas Constitution to authorize the legislature to determine limitations on non-economic damages. On September 13, 2003 proposition 12 passed despite heavy opposition from the trial lawyers. The Tort Reform Act of 2003 was passed and Texas suddenly had sweeping tort reform.

The law contained many provisions, but two in particular are very important to emergency cases. In emergency medical cases the burden of proof was changed to “willful and wanton negligence”. This actually required a standard of proof beyond gross negligence, and is extremely difficult to prove. The second important provision was capping non-economic damages at 250,000. Basically, in emergency cases, this made it difficult for trial lawyers to win cases involving emergency physicians and limited payouts even if they did win. Economic damages remained intact without a cap. This was a huge victory and many of our past TCEP leaders were highly involved in passing this legislation. We all owe them a debt of gratitude!

However, the fight didn’t end in 2003. The Texas Trial Lawyers Association continue to publicly claim that tort reform did nothing to improve care in Texas and even made it more dangerous for patients. They claim this despite readily available date which shows a large influx of physicians in all specialties to Texas. Multiple claims that this influx of physicians was not because of tort reform are easily disproved, and TAPA has published legal reviews that clearly lay out all of the relevant data. Despite overwhelming data, the trial lawyers attempt to undo parts of tort reform during every legislative session. TAPA and TCEP watch closely for any attempt to undermine tort reform and then take appropriate action. This past session, legislation was introduced which would have significantly undermined the “willful and wanton” standard. Myself and other TCEP members became highly involved in the discussions between the bill’s author and the Texas Trial Lawyers Association. TAPA and TCEP were able to negotiate revised wording which basically changed nothing in regard to emergency care. It was a victory for TCEP, and it demonstrated the critical nature of the relationship between TCEP and TAPA.

There is no doubt that the upcoming legislative session will be unique on many levels, but you can be certain that the trial lawyers will attempt to undermine tort reform. We need emergency physicians who are ready to testify on multiple topics. If you are interested in volunteering to help, TCEP is compiling a list of EM physicians that we can call on for testimony to legislators, media interviews, etc. Please contact the TCEP office if you are interested in joining this team!