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To time to about 15 minutes of panel, exclusive of questions. At that point, after the conclusion

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of the panel, the committee will stand at ease for a few minutes to give everybody a chance

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to take a break if they need it. And then we'll come back and receive testimony on an individual

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basis so that it will work like this. If you are going to address a specific topic

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in the bill by page in line reference number, we are going to allow you three to five

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minutes of time, if you're going to speak either you're for or against the bill and generally

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why you're that way, we're going to limit your time to two minutes.

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We're going to do this out of fairness for everyone here, but also a fairness for the

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committee members, our ability to digest hours and hours and hours of information

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in unlimited testimony we just don't possess.

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And so we're going to, so that we can make sure that we have an opportunity to hear everybody fairly, we're going to impose time limits on everyone is on just the people who are going to generally speak on the bill.

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So with all that being said, the chair now calls up HDR3 and HD3 and we'll explain the bills.

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The

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purpose of House Bill 3 and HDR 3 is to establish an equitable and efficient system

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of justice in Texas that provides meaningful remedies for those who have been injured at

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the same time protecting the rights of those who have done no wrong.

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As we all know, criminalized healthcare lawsuits in Texas have cost millions of dollars to

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patients and thousands of hours of time, time that is stolen from doctors, nurses

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and other health care providers who want to spend it caring for their patients.

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Federalist lawsuits and unlimited awards for mental anguish and pain and suffering damages

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have driven many liability insurance companies out of Texas.

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This has created a crisis for doctors and hospitals that are faced with dramatic increases

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in professional liability insurance premiums or can't afford to buy needed insurance and

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must either reduce or drop their insurance coverage or restrict their practice.

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This health care liability crisis has forced many qualified positions to leave the state.

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Key statistics that I think are all important for us to recognize is that Texas has 25% less doctors

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for its population than does the rest of the United States.

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For every 100,000 citizens, Texas has about 152 doctors.

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The rest of the United States has almost 200 doctors for every 100,000 citizens.

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In 1989, the average medical malpractice verdict was 472,000.

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Ten years later, it's over 400% to 2,048,000.

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A disproportionate surge in non-economic damages has been the primary culprit

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and the tremendous increase in size of medical malpractice verdicts during the 1990s.

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The percentage of verdicts in the medical malpractice cases attributable to non-economic

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damages has risen from 35% in 1991 to 65% in 1999.

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So the two-thirds of the average verdict in a medical malpractice case in Texas is non-economic

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damages.

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In 1989, the Average Non-Economic Damage Award was $318,000.

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In 1999, in comparison, the Average Non-Economic Damage Award in a medical malpractice case

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was $1.3 million.

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Texas Medical Liability Trust reports that 80% percent of medical liability claims

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in Texas will end with no payment to the claimant.

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The Texas Department of Insurance has reported to this committee that the number of medical

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malpractice companies that ride medical malpractice insurance has dropped from 17 in recent years

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to four currently.

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Jose Montemayor testified to us earlier that the Texas insurance companies covering medical

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malpractice insurance is currently at a negative 50% rate in terms of their premiums.

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For every dollar collected, they're paying out about $50 to $60.

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The purpose of HB3 and HDR3 is to provide some common sense solutions in looking at

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what is worked and other jurisdictions to address this problem.

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The most important part of H.J.R.3 and H.B.3 is a $250,000 cap on non-economic damages.

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A $250,000 cap on non-economic damages is consistent with the laws enacted within a number of other states

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and will allow for reasonable recovery of damages by claimants.

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And please understand that there is no limitation in HB3 with regard to economic recovery whatsoever.

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The use of CAFs to control risk of litigation is neither new nor novel.

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Texas has used CAFs to protect workers for over 100 years.

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Other areas where CAFs apply are where there have been claims against cherries and volunteers,

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statutory claims against health care providers, claims for punitive damages in

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URSA, certain consumer protection laws, several different federal laws have used

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caps with vaccinations we use caps with charity care and now the reality is

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that a very soft cap now exists under the common law in Texas due to the lack

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due to the expense of insurance and the lack of, in some cases, sufficient coverage by

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doctors.

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You're just limited to whatever the doctor's malpractice coverage is.

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Back in 1975, the legislature asked Dean Keaton at the University of Texas to prepare

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a report on the crisis that existed at that time.

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The Keaton report in 1977 recommended that the legislature enact a cap on all damages

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and alternatively a cap on non-economic damages.

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The legislature responded at that time to the Dean Keaton report

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by passing a $500,000 cap on all damages

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and alternatively a $150,000 cap on non-economic damages.

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In 1987, the House passed a constitutional amendment

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designed to assure the constitutionality of the legislative caps

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received 111 votes at the House at that time. But in 1970, excuse me, 1988, the

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Texas Supreme Court had declared the CAHPS unconstitutional, hence the act of

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the legislature and attempting to do that. The Senate did not choose to pass

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that CAHPS. So CAHPS are nothing new and they have been used in other

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suggested it the legislature at the time in 1977 adopted it.

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So to that extent, HDR3 and HP3 has a threefold objective.

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The first is to ensure full and just compensation for all Texans

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who have a valid medical liability claims, including 100% recovery

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for past, present, and future medical expenses, loss of earnings,

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and maintenance and welfare. The second is to ensure access to medical care for

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all Texans from expected mothers to accident victims by making health care

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premium liability health care health care liability premiums available and

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affordable for Texas health care providers and the third is to stop the

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current fabulous medical liability lawsuit lottery with a hard cap on

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non-economic damage awards.

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So to that extent, that is the bulk of HDR3 and HP3.

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The other main thing that HP3 does is to provide a hard hurdle at the outset of the

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litigation.

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There is, in HB 3, a requirement after 180 days of filing the lawsuit that an expert report

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be filed that meets the statutory guidelines of a qualified expert.

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If the report is not filed, then the case will be dismissed.

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There will be an automatic right of appeal for either party at that time, but the intent

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is to cause the court to actually enter an order dismissing the case early on if there

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was not sufficient testimony by a qualified expert to say that the standard of care in

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the case was not met.

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So we're trying to deal both with the numerosity of the lawsuits and the severity of the

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judgments in a manner that still protects those who have been injured, but mostly

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protects and equally protects those who are providing healthcare to our Texas patients.

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So with that in mind, members, are there any questions of me before we call up our panel?

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Thank you very much.

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Our first panel, let me take care of one housekeeping issue.

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Everybody here wants to testify.

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We want you to testify.

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And to that extent, we want you to fill out a witness affirmation form.

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In fact, we want you to fill out two witness affirmation forms.

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One needs to say Hjr3, and the other one needs to say Hb3, and we're going to allow everybody

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to testify with regard to both pieces of legislation at the same time.

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Remember that when you sign this form, you're actually making an oath, and your testimony

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is being sworn to as being true and correct.

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I could put everybody under oath here, but I know that the signatures on these

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witness affirmation forms would take care of that.

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And we want, as we have the panel's discussions going forth, anybody who

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wants to fill out a witness affirmation form, please do so.

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And I will want all of those turned into the committee clerk, Hillary,

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before the end of the panel discussions.

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So if we could do that.

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Does everybody have any questions about that?

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Okay, with all that being said, let me call the first panel.

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The chair recognizes Spencer Berkelson.

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I wish he hadn't told me. I could have said it.

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Berkelson, Spencer Berkelson, to

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speak in favor of the bill.

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Well, Michael Regineer and

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Darlene Evans just speak in favor of four HB3 and HALR3.

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Pardon me?

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Where is our other panelist?

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Darlene?

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Okay.

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The big debate of the day is should we give the panels 15 or 20 minutes?

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So, whatever you get, everybody else is going to get.

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So,

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what do you all want, 15 or 20 minutes, exclusive of questions, 15, 15 it is.

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Chairman Nixon, we appreciate the opportunity to speak before the committee.

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Before you get going, could you please ever one stake your name for the record?

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Yes, I'm Spencer Burdelsen. I understand the difficulty of pronouncing my name. It took me

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three years to learn it myself. Thank you, sir.

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Who do you represent, Spencer?

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I represent the Texas Medical Association. Thank you.

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My name is Michael Regear, that's R-E-G-I-E-R.

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I'm the Vice President for Legal Affairs and General Counsel for the Seaton Health Care Network here in Austin.

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And I'm here on behalf of the member institutions of the Texas Hospital Association.

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Thank you.

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I'm darling, and it's easy for you.

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And I'm a nursing administrator representing myself as well as the Texas Health Care Association,

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Trade Association representing long-term care facilities.

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Thank you very much. Please proceed.

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We decided that I would proceed first.

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I am Spencer Burdison, a Houston internist practicing at the Kelsey Siebel Clinic in

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Houston and I'm here today representing the Texas Medical Association.

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We represent 38,000 TMA members and we take care of 21 million patients in the state

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of Texas.

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I think it's pretty clear to the committee that physicians really need professional

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liability insurance in order to practice medicine.

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This is required for hospital privileges as well as to participate in managed healthcare plans.

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And it's also necessary to protect the careers and the family resources of those individual physicians.

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It's also clear to us.

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I think it is to you that we are in a state of crisis, but particularly Texas has been identified

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as a crisis state by the American Medical Association. Because professional liability insurance is

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unaffordable. We've experienced great increases that vary between 20 to 100 percent, depending

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on location and specialty. In some cases, higher than that. In some cases, it's just

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simply not available at all. We've had instances in which physicians have not been able

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to obtain wide-building insurance due to insurers leaving the state.

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The cause of this crisis are several, but they include the items that you mentioned in your

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opening remarks, the frivolous lawsuits, the vast majority of which are settled, not settled,

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but closed with that payment to the plaintiff.

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It still requires thousands of dollars to defend them.

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those dollars would be best applied in the healthcare system to provide medical care.

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Escalating jury awards such that the risk of a lottery-sized jury award unpredictably occurring

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essentially takes away the ability to take your cases consistently to court because

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of bearing the risk of this very high lottery award can be devastating to an individual physician.

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And the results of the crisis and professional liability flows through to identical effects

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on the health care system and availability of health insurance that raises the cost of

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health care, raises the cost of health care insurance premiums, and as a result makes

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it less affordable and therefore less available.

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It also increases the amount of defensive medicine that physicians are compelled to

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practice which also has an effect of raising the cost of health care.

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It also affects availability of provision of medical services beyond just availability

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of health insurance.

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We are facing as physicians hard choices that we never thought we would face in the practice

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of medicine and they include such things as which conditions can we continue to provide

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care for, which patients can we continue to provide care for, which locations can

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we continue to provide medical care in, and in fact, we continue to practice in some cases

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at all.

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A recent TMA survey confirmed the concerns that you expressed in your open remarks, including

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the fact that more than half of Texas physicians are considering early retirement as a direct

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result of this liability crisis.

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Over 70 percent of physicians have increased the practice of defensive medicine as a result,

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And 40% have either limited the types of patients that they will accept or the services that they can provide.

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The information that we provided to the committee earlier from the Texas Medical Association details a number of very specific examples in which this has occurred throughout the state.

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It's not a particular geographic location, but it's really throughout the state.

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Later you will hear a testimony from a number of physicians which will tell very compelling

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stories of individual accounts of how it affects their ability to care for their patients.

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This crisis really does affect all of us and it really is a crisis and if it's not

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resolved it will and does jeopardize our ability to provide necessary medical care

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to the citizens of Texas and we urge you to support House Bill Free and House

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Joint Resolution Free. Thank you.

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Good afternoon, Mr. Chairman and ladies and

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gentlemen of the committee. Again, I'm Michael Regear. I'm the general council

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proceeding in that role. I have the responsibility to manage all the legal

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matters that affect our network here in Central Texas. It's a position I've

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held for seven and a half years and I've been in practice for about 18

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years now. I'm here on behalf of Seton and THA to talk about the crisis that faces hospitals

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and providers. And I wanted to approach it from a little bit different perspective to

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say that why I support HB3 is because I think it achieves three important public policy

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objectives for our state. First, it's going to help ensure that Texans who need to see

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a physician or get into a hospital can do so when they need to do so. Second, it

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should stabilize and hopefully reduce the cost of obtaining liability insurance coverage.

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and third, it will improve the fairness of the medical liability litigation system.

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I'm distributed written remarks to the committee.

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I'm not going to read those.

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I would like to highlight just a couple of things, though, to bring those to your attention about each of those three policy objectives.

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First, on improving access to health care.

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Every consumer in Texas wants to know that when you need a doctor, you can see a doctor.

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Any legislative reform proposal that we're going to adopt needs to make sure that we

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can maintain and improve our access to health care services.

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You've heard a lot, I'm sure, and seen a lot in the media about physicians leaving the state.

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We're beginning to see the effects of that here in Austin.

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Last fall, I was invited to testify before the Senate's interim committee on a prop payment

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of health care providers.

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On that panel with me was Dr. David Duffner, who is an orthopedic surgeon practicing here in Austin.

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Dr. Duffner spoke, this was in the middle of October, about the challenge he was facing

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in maintaining his practice here because of the cost of his liability insurance.

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I learned last week that Dr. Duffner's resigned from our medical staff and is relocating his

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practice outside of the state of Texas.

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In addition, we in Austin have seen one of the neurosurgeons who served our community

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lose his medical liability insurance and lead the state to practice elsewhere.

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As you might understand, neurosurgery and orthopedic surgery are two critical disciplines to being able to operate effective emergency department services and in particular the regional trauma program that we operate at Brackenridge.

231
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It's also affecting our ability to provide emergency department on-call services.

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We had a community task force here in Austin that was established by the mayor to look at the problem that hospitals are having, getting physicians to take call coverage in the emergency department.

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We've met with many specialty physicians and a consistent thing that is coming up from those

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physicians is their fear of liability claims that's keeping them from being willing to participate

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in providing that call coverage.

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So I would just say to you, a situation that's a crisis for Texas physicians becomes a crisis

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for Texas hospitals.

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And above all, the citizens of Texas really need to know that they can see a doctor

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or be admitted to a hospital when that's necessary.

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The second goal from the public policy perspective I think is to stabilize and hopefully reduce

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the cost of liability insurance.

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I'll share a little bit about our experience.

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This year, our one-year percentage increase in our insurance premiums over last year

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was 75%.

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Let me put that in a little better perspective.

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The total dollar amount of that increase, just that increase, was more than 50%

247
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of the net income for our whole company in 2001.

248
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We've just gotten information from our national health system

249
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which arranges and administers our insurance programs

250
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that the nationwide, our national health system increase

251
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for next year will be 48 percent.

252
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However, due to the loss experiences

253
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that the state of Texas is experiencing,

254
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we can expect our increase

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to be substantially higher than that.

256
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If we have the same percentage increase for our next year as we did for this year,

257
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our insurance costs will have tripled in a two-year period.

258
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So any reform that we undertake really does need to stabilize the insurance market

259
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and find a way to reduce those costs for hospitals and physicians.

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The experience of our medical staff members is really parallel and worse than our own in many cases.

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We surveyed 900 members of our medical staff this summer, 60% of those who were surveyed responded.

262
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That's an extremely high response rate. And 68% of the physicians who responded said that their premiums had increased,

263
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on average, 63% from as little as 1% to as much as 350%.

264
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The point of the statistics is to illustrate the dramatic increase that providers are facing.

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And to tell you, that puts a position where we're trying to balance those increases with the need to invest in medical equipment to retain and recruit our staff and to be able to deliver care and those compromise our ability to do that.

266
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And then finally, I think that the no less important third policy objective is to find a way to improve the fairness of the medical liability litigation system.

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Both Seaton and the THA believe patients who have been injured because of provider negligence should be fully compensated.

268
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And any reform proposal has to assure that the patient's continued medical care needs can be met.

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And HB3 accomplishes that because it doesn't limit the amount that a patient can recover for economic damages.

270
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But healthcare liability lawsuits have to be made fair for providers as well as patients.

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We have to eliminate the kind of gamesmanship that we have seen that is driving at the cost

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and making these claims so large and unpredictable.

273
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And looking at our claims history and preparing for today,

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the increase in our indemnity payments,

275
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that's the payments and settlements and jury awards

276
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for our closed claims.

277
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For the year ending December 31, 2002,

278
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the average indemnity payment for each lawsuit

279
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was 394% higher than our average indemnity payment

280
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for lawsuit was in 1995.

281
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The last year that the legislature tried

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to enact liability reform measures that were intended to curb frivolous lawsuits.

283
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Similarly, our expenses, our average expenses per lawsuit have increased by nearly 64 percent

284
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as of the end of 2002 over the year ended 1995.

285
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It's not a problem that's isolated to us at Seton.

286
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I've talked to my other in-house colleagues in healthcare institutions and they too have

287
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seen these costs with litigation spiral upward.

288
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Again, I would just say this is an extraordinarily important issue for the state's health care providers.

289
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There are four key provisions I think in HB3, the cap on non-economic damages, the elimination of the collateral source rule,

290
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the permitting defendants to use periodic payments to assure that financial resources are there when they're needed,

291
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and finally four, the placing reasonable limits on contingency fee arrangements.

292
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Those to me are the cornerstone of effective medical liability reform.

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HB3 is a very comprehensive approach that I think addresses the crisis well

294
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and helps ensure that our patients in Texas can continue to get the care they need

295
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when they need it, and I really urge you to vote in favor of that.

296
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And thank you for your time.

297
00:26:03,220 --> 00:26:04,480
Good afternoon, Chairman and members.

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My name is Darlene Evans.

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I'm a licensed nursing home administrator and owner of Autumn Wins Retirement Lodge in Shirts.

300
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Shirts being located just a little north of San Antonio.

301
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And I've enjoyed working at Autumn Winds for 26 years and became the owner of the facility along with my husband in 1996.

302
00:26:21,340 --> 00:26:27,340
Autumn Winds is a 96-bed licensed nursing facility providing a home residence and medical care to our residents.

303
00:26:27,620 --> 00:26:31,880
We have a 60% Medicaid, 40% private pay mix.

304
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And the greatest majority of our residents come from shirts and immediate about 5-mile radius of rural towns in that area.

305
00:26:38,660 --> 00:26:43,560
In addition to my administrative position, I'm also the Vice Chair of the Texas Health

306
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Care Association Board, which is the largest long-term care association in Texas.

307
00:26:49,000 --> 00:26:54,300
And I'm not here to discuss the technical elements of HB3 or HJR3.

308
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That's not my area of expertise.

309
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My area of expertise is taking care of residents.

310
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And I'm here to represent the concerns of the nursing home professionals.

311
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and the residents we serve regarding the litigation environment we are currently in.

312
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If substantial changes are not made in that environment,

313
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access to nursing home care will seriously be damaged.

314
00:27:16,680 --> 00:27:22,160
Like many of my colleagues, I am one meritless lawsuit away from being forced to close the doors

315
00:27:22,160 --> 00:27:27,340
of not only my business, but more importantly, the home of 96 elderly people.

316
00:27:28,320 --> 00:27:32,600
Over the years, item wins has enjoyed a good compliance history with the regulatory agencies,

317
00:27:32,600 --> 00:27:37,300
And by the grace of God, we've never had a lawsuit filed against our facility.

318
00:27:38,040 --> 00:27:43,900
In spite of these facts, we've seen our liability insurance rates increase 1,000% in the last

319
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five years.

320
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All the while, our Medicaid reimbursement increase has only been less than 20% in that same five-year

321
00:27:50,860 --> 00:27:51,240
period.

322
00:27:51,680 --> 00:27:58,420
In 1998, our insurance premium was $12,000 for a $1 million, with $3 million aggregate,

323
00:27:58,420 --> 00:28:03,720
a thousand dollar deductible and including an additional $1,000, excuse me, million dollar umbrella.

324
00:28:04,540 --> 00:28:08,300
In 2000, that same policy premium was $55,000.

325
00:28:09,100 --> 00:28:16,400
In 2002, the premium was $118,000 with the same limit but a $50,000 deductible,

326
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no umbrella coverage and additional exclusions contained in the policy.

327
00:28:21,280 --> 00:28:25,240
Our policy renews in March and while our application has been on file,

328
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Our agent informs us that our only market for renewal will be with our current carrier

329
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who at this time is not willing to disclose rates or terms to us.

330
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The remaining options would be the high-risk pools and additionally we have looming

331
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over us the liability insurance becoming mandatory in September of 2003.

332
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These cost demands places in a position of making some very difficult choices

333
00:28:48,400 --> 00:28:49,880
and funding is very limited.

334
00:28:49,880 --> 00:28:57,920
In 1998, liability insurance premiums comprised 5% of my total variable cost while in 2002,

335
00:28:58,240 --> 00:29:02,300
these premiums comprised 50% of my variable cost.

336
00:29:03,260 --> 00:29:09,280
This escalation began to decrease our cash flow significantly, thereby causing us

337
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to violate cash flow ratios cited in our bank loaner's covenants and putting us

338
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at risk of having our bank call our note.

339
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We are forced to look for all avenues of reducing cost.

340
00:29:20,380 --> 00:29:24,900
Since salaries, wages, and benefits constitute over 60 percent of our total expenses,

341
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this is the first area we look at.

342
00:29:27,300 --> 00:29:31,380
If we must reduce wages or benefits, we risk losing current employees,

343
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many of whom have been with me for at least a decade or more.

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And certainly, we contribute to the compromise of our facilities reputation.

345
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Five minutes is up.

346
00:29:45,210 --> 00:29:50,290
we are we are bumping up against your time okay thank you I'll tell you what

347
00:29:50,290 --> 00:29:52,810
I'll extend it to 20 minutes I'm gonna give everybody 20 minutes

348
00:29:54,820 --> 00:29:55,900
no I hear

349
00:29:55,900 --> 00:29:59,880
everyone saying you have a sentence you can wrap up in

350
00:30:02,320 --> 00:30:08,100
Yes. Item wins is proud to be providing care for second generation residents. What happens

351
00:30:08,100 --> 00:30:12,940
to the third generation residents? They should have the same opportunity. 15 of our residents

352
00:30:12,940 --> 00:30:18,440
have spouses who live in our immediate community who would not be able to travel distances to

353
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see their spouse. And what happens to Ida, who's lived at item wins since 1974 and we

354
00:30:23,740 --> 00:30:31,340
are her only family? If we don't have the reforms we need in litigation, we won't

355
00:30:31,340 --> 00:30:36,420
survive. And there won't be facilities in Texas to take care of our elderly. And will they go to

356
00:30:36,420 --> 00:30:37,480
Louisiana or Oklahoma?

357
00:30:38,660 --> 00:30:39,600
Thank you very much.

358
00:30:44,980 --> 00:30:49,660
Thank you, Mr. Chairman. I'd like to ask each of you on the panel, and I appreciate your

359
00:30:49,660 --> 00:30:55,580
comments, Darlene. I think you pretty much summed up what I was, I guess, not hearing with

360
00:30:55,580 --> 00:31:01,340
regard to insurance reform. Let me ask you something for, and I'd like to ask each of you to

361
00:31:01,340 --> 00:31:05,800
answer this. Where in this bill do you think it says it's going to lower your rates, insurance

362
00:31:05,800 --> 00:31:10,780
rates? What part of the bill speaks to that? Because I can't find it and I'm just wondering

363
00:31:10,780 --> 00:31:14,520
what part of your reading that would ensure you'd have lower insurance rates as doctors?

364
00:31:19,090 --> 00:31:24,190
I'm certainly not an expert in insurance and so, but my understanding is that

365
00:31:27,390 --> 00:31:28,550
legislation

366
00:31:28,550 --> 00:31:33,270
is patterned after the micro-legislation in California which has stood the test

367
00:31:33,270 --> 00:31:38,950
of time over 25 years, and the California rates are substantially lower than what they

368
00:31:38,950 --> 00:31:45,790
are in Texas, and they have averted the crisis in California, and this legislation has really

369
00:31:45,790 --> 00:31:51,930
stood the test of time and demonstrated that it clearly does lower professional liability

370
00:31:51,930 --> 00:31:56,590
insurance premiums, and that there's no particular reason why I wouldn't expect it to be successful

371
00:31:56,590 --> 00:31:57,330
in Texas.

372
00:31:57,330 --> 00:31:58,170
Okay.

373
00:31:59,390 --> 00:32:04,850
And to that I would just add there is no provision that says that there's a rate rollback in HB3.

374
00:32:05,530 --> 00:32:11,030
It is intended to address the circumstances that are driving the increases in the premium.

375
00:32:11,290 --> 00:32:14,150
And if you roll rates back without addressing those premium increases,

376
00:32:14,290 --> 00:32:17,050
I think all that will happen is the remaining insurers will flee the state.

377
00:32:17,830 --> 00:32:20,930
So let me ask you one other question with regard to the micro.

378
00:32:21,130 --> 00:32:24,310
Are you aware that micro worked because there was a rollback in the registration?

379
00:32:24,310 --> 00:32:26,870
Are you aware of that in California?

380
00:32:28,490 --> 00:32:34,390
Well, I'm not an economist either, but I can also assume that if we just roll back rates

381
00:32:34,390 --> 00:32:39,410
with the insurance companies losing money as it is now, they will leave the state

382
00:32:39,410 --> 00:32:41,850
and we may have low rates, but no insurance companies.

383
00:32:42,350 --> 00:32:45,990
So in your mind, do you think we ought to have that as part of this bill also

384
00:32:45,990 --> 00:32:48,470
so that we would address all of that at the same time,

385
00:32:48,590 --> 00:32:52,310
or do you think doing this absent of rollbacks makes sense to you?

386
00:32:53,650 --> 00:32:58,150
Speaking of some of your expertise, but beyond that, I would say that what we need is competition

387
00:32:58,150 --> 00:32:58,990
in the state of Texas.

388
00:32:59,190 --> 00:32:59,910
We don't have it now.

389
00:32:59,950 --> 00:33:01,030
We just have too few companies.

390
00:33:01,190 --> 00:33:03,150
We need more companies that will compete against each other.

391
00:33:04,010 --> 00:33:04,590
Thank you.

392
00:33:09,580 --> 00:33:09,940
Good.

393
00:33:10,040 --> 00:33:12,040
Address this question to Dr. Brunselson.

394
00:33:12,360 --> 00:33:17,580
And really to everybody here, perhaps somebody can answer it to the extent people have

395
00:33:17,580 --> 00:33:18,280
an opinion.

396
00:33:18,900 --> 00:33:22,400
I've got an article from the Morning News from last week, and it cites these statistics

397
00:33:22,400 --> 00:33:29,000
from public citizen about the percentage of doctors involved in multiple malpractice payouts

398
00:33:29,000 --> 00:33:36,440
versus the total payouts. And it says 6.5 percent of Texas doctors made two or more malpractice

399
00:33:36,440 --> 00:33:41,980
payouts, totally more than $1 billion. That amount would be 51.3 percent of all payments.

400
00:33:42,600 --> 00:33:48,640
I'm just curious, are those reliable statistics? And if so, what can we do about that problem?

401
00:33:48,640 --> 00:33:52,440
And that seems to me to be a serious driver of this scenario.

402
00:33:52,680 --> 00:33:55,840
And just to the extent you have comments and anybody else.

403
00:33:57,020 --> 00:33:59,820
I can't vouch for the veracity of the statistics.

404
00:34:00,160 --> 00:34:03,140
But what I can tell you is that physicians

405
00:34:03,140 --> 00:34:05,500
in the Texas Medical Association supports

406
00:34:05,500 --> 00:34:10,020
and effective robust board of medical examiners

407
00:34:10,020 --> 00:34:12,260
with improvement in the board's ability

408
00:34:12,260 --> 00:34:15,780
to investigate these cases and to take action when

409
00:34:15,780 --> 00:34:16,240
necessary.

410
00:34:16,760 --> 00:34:22,560
and remove these physicians from practicing in the state so that they don't get into malpractice

411
00:34:23,660 --> 00:34:27,240
claims and that they don't injure patients in the first place.

412
00:34:28,580 --> 00:34:35,900
We believe that the current tort system is not any substitute for an effective board of medical examiners

413
00:34:35,900 --> 00:34:41,720
and we would put all of our energy in that much more bang for the buck in that area than in the tort system.

414
00:34:42,340 --> 00:34:45,480
Then a follow-up question, again, you may not know the answer, but hopefully somebody

415
00:34:45,480 --> 00:34:46,060
here will.

416
00:34:46,220 --> 00:34:50,100
Somebody told me that in the last five years, only one doctor's license has been canceled.

417
00:34:50,320 --> 00:34:52,360
Is that right, or am I off on that?

418
00:34:52,500 --> 00:34:53,920
That certainly sounds untrue to me.

419
00:34:54,440 --> 00:34:56,060
I don't know how it is, but it's more than one.

420
00:34:56,260 --> 00:34:56,520
Okay.

421
00:34:56,580 --> 00:34:59,420
Maybe somebody can give me some statistics, and that's one thing we're trying to

422
00:34:59,420 --> 00:35:00,200
wade through is the information.

423
00:35:00,900 --> 00:35:04,480
And then just one other question, again, to if anybody has an answer.

424
00:35:05,060 --> 00:35:07,800
Are we basically saying here that the problem is we have runaway juries?

425
00:35:07,800 --> 00:35:09,940
Is that the heart of this problem?

426
00:35:11,660 --> 00:35:18,880
I think it's multifactorial, but it's a difficulty that juries have with being consistent from case to case

427
00:35:18,880 --> 00:35:25,140
and knowing how to evaluate what the award should be with a very compelling plaintiff,

428
00:35:25,160 --> 00:35:27,760
even if there wasn't malpractice committed.

429
00:35:29,000 --> 00:35:32,940
Basically, the jury awards that are driving the problem, is that fair?

430
00:35:32,940 --> 00:35:38,060
The least predictable element of the damage award is that that's awarded for non-economic

431
00:35:38,060 --> 00:35:42,500
damages like the pain and suffering or the emotional distress.

432
00:35:42,900 --> 00:35:47,580
The most predictable, the kind that can be most subjectively evaluated is that that

433
00:35:47,580 --> 00:35:52,220
might pay for the cost of future medical care or custodial care for somebody who's been

434
00:35:52,220 --> 00:35:57,920
injured in a case or who has lost income as a result of an injury.

435
00:35:58,900 --> 00:35:59,480
Thank you.

436
00:36:01,500 --> 00:36:06,220
I think I have another, just a follow-up question about a portion of the bill that I'm concerned

437
00:36:06,220 --> 00:36:11,220
about and it relates to the payment process as private entities and doctors.

438
00:36:11,500 --> 00:36:15,500
Would you all be comfortable with the legislature setting up how you would be paid?

439
00:36:16,760 --> 00:36:21,000
There's a provision in the bill that speaks about how attorneys will be paid based

440
00:36:21,000 --> 00:36:23,580
on their winnings from losses and as professionals.

441
00:36:23,880 --> 00:36:26,940
I'm just curious if you would, like us, setting your payment plan.

442
00:36:26,940 --> 00:36:28,640
I would love to answer that.

443
00:36:30,900 --> 00:36:39,800
And other panel committee, other members of the panel, well, we have been regulated severely as to how we are paid,

444
00:36:40,300 --> 00:36:46,180
the circumstances under which we can be paid, the total amount that we can be paid, the documentation we have to provide.

445
00:36:46,680 --> 00:36:49,220
So we definitely understand that.

446
00:36:49,440 --> 00:36:54,880
But that's a little different. That's between you and a contractor that agreed to provide certain services with an entity.

447
00:36:54,880 --> 00:36:56,980
it's agreed that that's the rate they're going to pay.

448
00:36:57,320 --> 00:36:58,880
You don't have to accept that, do you?

449
00:36:59,420 --> 00:37:03,040
But between two private entities, if a patient comes in and says

450
00:37:03,040 --> 00:37:08,320
that they want your health care, am I able to set the rate?

451
00:37:08,660 --> 00:37:10,880
As a practical matter, we do have to accept that.

452
00:37:11,140 --> 00:37:13,320
There's, it's impossible to practice medicine outside

453
00:37:13,320 --> 00:37:15,480
of that, you can have the environment.

454
00:37:16,400 --> 00:37:18,280
That's the market driving it then, right?

455
00:37:18,700 --> 00:37:21,740
It's the market and its reality and we face it every day.

456
00:37:21,980 --> 00:37:22,200
Okay.

457
00:37:22,200 --> 00:37:27,060
I would say the government does set our prices for Medicare and Medicaid.

458
00:37:27,620 --> 00:37:32,260
We are price takers, but we don't get to necessarily negotiate individually

459
00:37:32,260 --> 00:37:35,060
with the Texas Medicaid plan on what rates we will re-reimbursed.

460
00:37:35,360 --> 00:37:41,220
I continue to believe that one of the economic engines that's driving the litigation

461
00:37:41,220 --> 00:37:43,840
problem that we have is the contingency fee system,

462
00:37:44,140 --> 00:37:48,280
and that one of the key components of this legislation to make it effective

463
00:37:48,280 --> 00:37:52,820
is to have some sort of reasonable approach to ensure that a bigger portion of awards

464
00:37:52,820 --> 00:37:56,760
are going to go into the pockets of the people who have been injured and to try to compensate

465
00:37:56,760 --> 00:38:01,160
those people for their future medical care or custodial care.

466
00:38:01,260 --> 00:38:04,240
Do you care for any other folks besides Medicaid and Medicare patients?

467
00:38:04,660 --> 00:38:09,240
They are the, would represent the majority of our hospitalizations that we do have.

468
00:38:09,660 --> 00:38:09,980
Private pay.

469
00:38:10,160 --> 00:38:11,320
Private pay.

470
00:38:11,740 --> 00:38:13,280
Do you set the private pay fee?

471
00:38:13,940 --> 00:38:14,580
We certainly do.

472
00:38:14,660 --> 00:38:14,900
Okay.

473
00:38:15,120 --> 00:38:15,520
Thank you.

474
00:38:15,520 --> 00:38:16,260
Robert,

475
00:38:21,110 --> 00:38:21,870
are there any other questions?

476
00:38:27,920 --> 00:38:35,600
Along the lines of Ms. Davis, Medicare and Medicaid sets what child's rates are, correct?

477
00:38:36,500 --> 00:38:42,080
And most insurance companies that you deal with set their rates along lines of what Medicare

478
00:38:42,080 --> 00:38:42,760
and Medicaid is.

479
00:38:42,920 --> 00:38:43,220
Is that correct?

480
00:38:43,460 --> 00:38:43,800
That's correct.

481
00:38:44,220 --> 00:38:45,660
Because they use that as a benchmark.

482
00:38:47,300 --> 00:38:52,920
The other thing that I wanted to address with you was that it's not any of your

483
00:38:52,920 --> 00:39:00,460
positions here on this panel is that someone who truly has been harmed by a doctor who

484
00:39:00,460 --> 00:39:06,180
has committed malpractice, they should be fully compensated for the harm that they've suffered,

485
00:39:06,320 --> 00:39:06,540
correct?

486
00:39:06,980 --> 00:39:07,800
That's absolutely right.

487
00:39:08,140 --> 00:39:14,360
And that's always been your contingency today and you're not trying to set some limit

488
00:39:14,360 --> 00:39:19,960
whereby somebody truly has been harmed cannot receive full compensation for what they've

489
00:39:19,960 --> 00:39:20,820
gone through.

490
00:39:21,200 --> 00:39:21,700
That's correct.

491
00:39:27,220 --> 00:39:29,560
I didn't quite understand that.

492
00:39:30,340 --> 00:39:32,980
We're not talking full compensation in this bill, are we?

493
00:39:33,600 --> 00:39:38,300
I mean, we're basically saying we're quantifying a person's pain and suffering,

494
00:39:38,480 --> 00:39:41,480
and we're saying the state is going to set a cap.

495
00:39:41,700 --> 00:39:44,520
And so the system, as it's currently structured,

496
00:39:44,800 --> 00:39:50,340
is supposed to provide full compensation for a person's individual suffering.

497
00:39:50,340 --> 00:39:57,900
And so I think we need to be clear, and everybody set me straight, but what we're talking about

498
00:39:57,900 --> 00:39:59,140
is not full compensation.

499
00:39:59,640 --> 00:40:04,660
We're talking about a state-imposed restriction on compensation.

500
00:40:06,240 --> 00:40:13,800
What HB3 proposes is that there would be no limit whatsoever on the economic damages

501
00:40:13,800 --> 00:40:15,040
that a person has suffered.

502
00:40:15,260 --> 00:40:20,120
There would be a limit on the non-economic losses, and the policy reason there is

503
00:40:20,120 --> 00:40:24,940
to assure that someone who needs medical care in the future, custodial care, or who's going

504
00:40:24,940 --> 00:40:30,460
to have lost income or other economic damages will be fully compensated without any limitation.

505
00:40:30,940 --> 00:40:33,960
There would be the $250,000 cap on pain and suffering.

506
00:40:34,600 --> 00:40:39,160
I think we need to be clear and correct me if I'm wrong, if this bill passes, there

507
00:40:39,160 --> 00:40:41,480
will be people who will not be fully compensated.

508
00:40:42,780 --> 00:40:47,560
I don't want to get into a sort of Clintonian exchange about the meaning of full compensation.

509
00:40:50,520 --> 00:40:58,480
My own view is that it's important that the primary policy objective should be to assure

510
00:40:58,480 --> 00:41:02,340
that people who need, have suffered an injury and need medical care can get that medical

511
00:41:02,340 --> 00:41:06,240
care and assure that that's paid for and if they have economic losses that those can

512
00:41:06,240 --> 00:41:13,400
be paid and to try to attempt to address the access issues, the cost issues and the

513
00:41:13,400 --> 00:41:18,540
fairness issues by capping that portion of the award that is the least objective and the

514
00:41:18,540 --> 00:41:19,840
most subjective.

515
00:41:20,860 --> 00:41:27,120
Okay, so it's your testimony that $250,000 will fully compensate every injured person

516
00:41:27,120 --> 00:41:28,940
in Texas that falls under this bill?

517
00:41:29,740 --> 00:41:32,580
I believe the $250,000 limit is a fair limit.

518
00:41:34,100 --> 00:41:38,180
Now my question is that will fully compensate so whatever horror story gets paraded out

519
00:41:38,180 --> 00:41:41,560
here today that $250,000 will fully compensate that person?

520
00:41:41,560 --> 00:41:47,640
And I do believe I back that limit to achieve the policy objectives that we need to achieve

521
00:41:47,640 --> 00:41:47,880
here.

522
00:41:48,340 --> 00:41:48,460
Yes.

523
00:41:48,940 --> 00:41:55,460
I would just like to add not to belay with this that money can't compensate for some

524
00:41:55,460 --> 00:41:55,760
injuries.

525
00:41:59,220 --> 00:41:59,800
Mr. Christon?

526
00:42:01,060 --> 00:42:01,300
Yes.

527
00:42:01,680 --> 00:42:06,000
I just wanted to just some clarification too because we're talking about fully compensating

528
00:42:06,000 --> 00:42:06,940
a person.

529
00:42:07,720 --> 00:42:12,400
But as I start to read this bill under the definition section when we start, we're

530
00:42:12,400 --> 00:42:18,320
not talking about a person. As I understand it, under claimant, claimant is a group of

531
00:42:18,320 --> 00:42:25,640
people. So, say today when I got on the internet I saw the example of the woman who had the

532
00:42:29,180 --> 00:42:34,780
organ transplant or something and transfused the wrong type of blood. It was a horrible

533
00:42:34,780 --> 00:42:40,040
accident and of course the young woman is going to suffer for an awful long time.

534
00:42:40,040 --> 00:42:46,280
But I would assume if there's a lawsuit that comes out of that, it won't be just the girl

535
00:42:46,280 --> 00:42:51,420
who sues, but her parents could be losing lots of cons, you know, if she's incapacitated

536
00:42:52,400 --> 00:42:56,380
and has to live with her parents for the rest of her life, and you know, each of her parents

537
00:42:56,380 --> 00:43:02,660
is also going to sue and sue for non-economic damages, including lots of consortium, and

538
00:43:02,660 --> 00:43:06,200
you know, they're not going to be grandparents or whatever the consequences are, and brothers

539
00:43:06,200 --> 00:43:07,000
and sisters too.

540
00:43:07,000 --> 00:43:13,440
And so when we talk about the cap of $250,000 for that sort of thing, the pain and suffering

541
00:43:13,440 --> 00:43:17,520
and loss of consortium, it's not just on that one person.

542
00:43:18,060 --> 00:43:20,420
It's for whatever group that is.

543
00:43:20,620 --> 00:43:28,860
I mean, so having many parents, grandparents, stepfathers and mothers, I mean, we're not

544
00:43:28,860 --> 00:43:30,080
really sure what that group is going to be.

545
00:43:30,080 --> 00:43:33,820
So we're not saying that one person is going to get $250,000.

546
00:43:33,820 --> 00:43:38,520
If a group happens to be 10, then it's 25,000, I guess.

547
00:43:39,980 --> 00:43:40,720
Is that right?

548
00:43:41,740 --> 00:43:43,040
I don't have the legislation.

549
00:43:43,380 --> 00:43:44,120
I'll do the bill.

550
00:43:44,600 --> 00:43:44,880
I'm sorry.

551
00:43:45,040 --> 00:43:48,320
Is this not a panel that's prepared to answer questions in the bill?

552
00:43:48,500 --> 00:43:52,560
I think Mike, there is another panel that will talk about the legal aspects,

553
00:43:52,880 --> 00:43:56,210
but I can answer your question if you're reading the bill.

554
00:43:56,210 --> 00:43:56,490
Thank you.

555
00:43:56,990 --> 00:43:58,090
I'll just wait for the next panel.

556
00:44:03,470 --> 00:44:03,830
How's everyone?

557
00:44:08,870 --> 00:44:13,410
I think we'll address Mr. Hardnett's concern here about full compensation.

558
00:44:13,410 --> 00:44:18,670
under the rules and under the law that is today, someone can,

559
00:44:20,860 --> 00:44:22,740
under some people's

560
00:44:22,740 --> 00:44:26,960
definition, receive full compensation both economic and non-economic, no limit

561
00:44:26,960 --> 00:44:31,940
being set on economic, but they don't receive all that money. Is that right?

562
00:44:34,420 --> 00:44:38,540
Up to 40% of that goes into a plaintiff's large pocket. Correct. So

563
00:44:38,540 --> 00:44:43,980
wonder and more in some sense. So I guess under certain definitions that in

564
00:44:43,980 --> 00:44:49,380
In today's systems, a plaintiff is never fully compensated.

565
00:45:00,720 --> 00:45:04,420
All right. Thank you very much. Thank you. Thank you.

566
00:45:06,360 --> 00:45:10,100
Good morning, Chair. Now we're going to have a second panel.

567
00:45:12,280 --> 00:45:16,900
David Bragg, Rachel Jennings, Harvey Rosenfeld, and Katie Bennett.

568
00:45:23,100 --> 00:45:31,060
For the record, I have David Bragg speaking against both H.A.R. 3 and H.B. 3.

569
00:45:31,060 --> 00:45:31,220
the

570
00:45:32,800 --> 00:45:33,660
Reggie J.

571
00:45:36,440 --> 00:45:37,400
They are the

572
00:45:38,180 --> 00:45:39,080
H.B.

573
00:45:39,220 --> 00:45:39,360
and

574
00:45:39,360 --> 00:45:40,280
L.

575
00:45:43,440 --> 00:45:44,040
L.

576
00:45:48,800 --> 00:45:48,980
L.

577
00:45:56,110 --> 00:45:56,710
Or

578
00:46:02,280 --> 00:46:02,880
Jim.

579
00:46:08,050 --> 00:46:10,390
I have respected the chairs since I was in California.

580
00:46:10,390 --> 00:46:14,490
I was not in a position to address them because they were late.

581
00:46:14,690 --> 00:46:14,910
And

582
00:46:15,730 --> 00:46:17,310
he takes hands.

583
00:46:17,850 --> 00:46:17,910
He takes hands.

584
00:46:22,630 --> 00:46:24,490
He takes hands.

585
00:46:24,490 --> 00:46:24,950
He's a

586
00:46:27,290 --> 00:46:29,410
reflective, hardy, rowdy, rowdy, rowdy, pavement stand.

587
00:46:40,090 --> 00:46:40,570
Mr.

588
00:46:44,940 --> 00:46:48,560
Chairman, I'm Reggie James, I'm the Director of the Southwest Regional Office of Consumer

589
00:46:48,560 --> 00:46:54,060
Union and I wanted to thank you first of all for setting up this panel because last week

590
00:46:54,060 --> 00:46:59,760
there was some concern about us being able to get in here and make our opinions known

591
00:46:59,760 --> 00:47:02,800
and it turns out that wasn't an oversight.

592
00:47:02,800 --> 00:47:06,240
You had a grand design, and I'm glad to be part of it.

593
00:47:07,600 --> 00:47:11,940
On the panel, we'd agreed to go pretty much almost in the order that you had us listed here.

594
00:47:12,060 --> 00:47:14,120
We're going to switch myself with Harvey.

595
00:47:14,880 --> 00:47:19,020
So not to take up much more time, I'd like to shift over to David Bragg.

596
00:47:19,880 --> 00:47:23,720
Mr. Chairman, I'm David Bragg, Legislative Council for AARP.

597
00:47:24,800 --> 00:47:30,880
Our interest in this bill primarily arises out of the impact it has on nursing home residents.

598
00:47:30,880 --> 00:47:33,600
I'm going to be talking from that perspective.

599
00:47:34,060 --> 00:47:38,500
I had three points I wanted to make, I think, with the panel at 15 minutes.

600
00:47:38,680 --> 00:47:41,280
I may only get the two of them, but I'd like to hurry along.

601
00:47:41,820 --> 00:47:47,460
I want to focus my testimony on the story of one man and how three provisions in HR3

602
00:47:47,460 --> 00:47:49,280
would affect that particular individual.

603
00:47:49,740 --> 00:47:50,820
I've changed the man's name.

604
00:47:51,880 --> 00:47:57,360
Julius Lee Anderson, a 76-year-old man, was a resident of Arnold Nerson, home in Austin for four months.

605
00:47:57,900 --> 00:48:05,980
Mr. Anderson was ambulatory and able to dress himself, care for himself, but he was somewhat confused and at times incoherent.

606
00:48:06,920 --> 00:48:15,220
Early on a Saturday evening, apparently unobserved, Mr. Anderson filled one of the nursing home's two bath tubs with hot water and sat down in it.

607
00:48:15,820 --> 00:48:23,440
The next time he was seen by anyone, Mr. Anderson was sitting on the floor of the bathroom, fully clothed, feeling scalded skin from his body.

608
00:48:23,440 --> 00:48:29,760
Mr. Anderson died 11 days later of complications from the second and third degree burns that

609
00:48:29,760 --> 00:48:31,760
covered 20 to 30 percent of his body.

610
00:48:32,660 --> 00:48:37,400
By law, the hot water temperature in nursing homes cannot exceed 110 degrees.

611
00:48:38,320 --> 00:48:44,680
On four separate occasions in the nine months preceding Mr. Anderson's scalding, the state

612
00:48:44,680 --> 00:48:52,680
excited the facility because the hot water was recorded at 130 degrees, 135 degrees, 140

613
00:48:52,680 --> 00:48:58,500
degrees, and 158 degrees. And the maintenance employee of the facility said that two days

614
00:48:58,500 --> 00:49:05,100
before Mr. Anderson died, the water temperature was 180 degrees. I want to talk first about

615
00:49:05,100 --> 00:49:10,520
damages. Mr. Anderson was a retired preacher living in a nursing home. Since he was

616
00:49:10,520 --> 00:49:16,100
veterans, his hospital bills and the burn unit were paid by the government. As would be true for

617
00:49:16,100 --> 00:49:24,060
most retired people and all nursing home residents, Mr. Anderson's scalding caused no economic loss.

618
00:49:24,900 --> 00:49:31,080
With few exceptions, in death cases, non-economic damages are the only types

619
00:49:31,080 --> 00:49:34,840
of damages that the law allows elderly people to recover.

620
00:49:35,960 --> 00:49:42,120
HB3, I think inadvertently, singles out this class of people and puts an arbitrary limit

621
00:49:42,120 --> 00:49:44,500
on their only damages.

622
00:49:46,000 --> 00:49:51,400
Every second of every minute of every hour of every day, Mr. Anderson's pain must have

623
00:49:51,400 --> 00:49:52,160
been unbearable.

624
00:49:53,100 --> 00:49:59,160
HB3 says that no matter how severe, no matter how awful, the maximum amount of compensation

625
00:49:59,160 --> 00:50:02,600
that the nursing home has to pay is $250,000.

626
00:50:02,600 --> 00:50:08,800
dollars. The question we have is what do we gain by making courts and juries ignore the

627
00:50:08,800 --> 00:50:14,040
true cost of that kind of human suffering? And what about punishing the nursing home?

628
00:50:15,460 --> 00:50:22,700
Right now in Texas under current Texas law to recover any punitive damages against the

629
00:50:22,700 --> 00:50:28,520
nursing home, Mr. Anderson has to prove by clear and convincing evidence that standard

630
00:50:28,520 --> 00:50:34,680
standard number one, that the nursing home knew about the extreme risk, but that it did

631
00:50:34,680 --> 00:50:38,540
not care. That's the current standard for punitive damages.

632
00:50:40,640 --> 00:50:42,260
Here we have a nursing home that not

633
00:50:42,260 --> 00:50:47,640
only ignored orders from the state to fix its hot water, but it also allowed the water

634
00:50:47,640 --> 00:50:53,780
to get hotter and hotter and hotter until finally Mr. Anderson was called to death.

635
00:50:53,780 --> 00:51:02,320
death. The nursing home knew but did not care. If we assume that a jury would find that a

636
00:51:02,320 --> 00:51:10,580
slow death from scalding would be worth $250,000 in non-economic damages, then under House

637
00:51:10,580 --> 00:51:17,040
Bill 3 that nursing home gets explicit protection in that its punitive damages are limited

638
00:51:17,040 --> 00:51:26,440
to $250,000. No more, no matter the conduct. That's about 12 months of profit for an average

639
00:51:26,440 --> 00:51:33,000
Texas nursing home based on the cost reports filed with the state. For a large chain, it's

640
00:51:33,000 --> 00:51:40,120
a drop in the bucket. Why would we want to protect that kind of nursing home? But that's

641
00:51:40,120 --> 00:51:45,420
what HB3 does. My third point your honor has to do with settlement offers, let me

642
00:51:45,420 --> 00:51:53,380
I'm sorry. I'm used to being in close. Has to do with settlement offers. Y'all made a

643
00:51:53,380 --> 00:51:59,600
point earlier that I thought was right on point, and that is, you cannot predict what a jury

644
00:51:59,600 --> 00:52:05,700
will write into a blank on a pain and suffering question. It is an unknowable thing. But under

645
00:52:05,700 --> 00:52:10,540
House Bill 3, it says that if the defendant makes a settlement offer to the plaintiff,

646
00:52:10,540 --> 00:52:17,780
Then, the plaintiff has to divine somehow what the jury is going to do later.

647
00:52:18,440 --> 00:52:25,720
And if that plaintiff guesses wrong is $1 less than what was offered, then all of that shifts

648
00:52:25,720 --> 00:52:30,260
over and the plaintiff has to lose the attorney's fees incurred by the defendant.

649
00:52:31,420 --> 00:52:35,260
That doesn't make sense to me because it's an unknowable, it's not something somebody

650
00:52:35,260 --> 00:52:36,100
could figure out.

651
00:52:36,600 --> 00:52:42,380
but at least to make it fair we would propose let's add a provision and that is

652
00:52:42,380 --> 00:52:47,620
this if the defendant fails to make a settlement offer or if the offer that's

653
00:52:47,620 --> 00:52:52,400
made by the defendant is a dollar less than what is ultimately awarded by the

654
00:52:52,400 --> 00:52:57,420
jury then let the plaintiff recover all of its attorney's fees stacked on top

655
00:52:57,420 --> 00:53:01,720
of the judgment we think both of them are wrong but if you're going to have

656
00:53:01,720 --> 00:53:05,500
one at least you've got to have the other just to make it fair having said

657
00:53:05,500 --> 00:53:09,000
that Mr. Chairman, thank you very much for the opportunity to talk.

658
00:53:14,640 --> 00:53:18,200
Mr. Chairman, members of the committee, thank you for inviting me here to testify.

659
00:53:18,440 --> 00:53:19,760
My name is Harvey Rosenfield.

660
00:53:20,100 --> 00:53:25,980
I'm the president of the Foundation for Taxpayer and Consumer Rights, the nonprofit, nonpartisan

661
00:53:25,980 --> 00:53:28,680
citizen advocacy organization in California.

662
00:53:30,100 --> 00:53:35,980
I am the author of a book on the topic of micrometical malpractice, but I'm best

663
00:53:35,980 --> 00:53:41,640
know in California for being the author of the proposition that lowered insurance premiums

664
00:53:41,640 --> 00:53:45,560
and returned $135 million to physicians in California.

665
00:53:46,040 --> 00:53:47,360
No, I'm not talking about micro.

666
00:53:47,760 --> 00:53:50,480
I'm talking about an insurance reform proposition 103.

667
00:53:51,340 --> 00:53:55,100
I'm going to condense a vast amount of experience we've had with both micro and insurance

668
00:53:55,100 --> 00:53:58,680
reform in California into four and a half more minutes.

669
00:53:59,320 --> 00:54:05,960
I've asked my colleague, Mr. James, to hold this up for you.

670
00:54:06,000 --> 00:54:07,020
I apologize to the audience.

671
00:54:07,980 --> 00:54:13,600
Micro was passed in a panic by the California legislature in 1975 during the physician availability

672
00:54:13,600 --> 00:54:17,880
crisis that inspired from higher insurance premiums that year.

673
00:54:18,460 --> 00:54:22,340
As you see from this chart, a copy of what you have before you, insurance premiums

674
00:54:22,340 --> 00:54:28,540
continued to rise all the way through 1988 through the next insurance crisis when

675
00:54:28,540 --> 00:54:32,020
And insurance companies ran into trouble in the stock market in the mid-1980s, interest

676
00:54:32,020 --> 00:54:35,780
rates fell down, and as we all know, they boosted premiums across the board.

677
00:54:36,160 --> 00:54:39,120
Many states passed so-called tort reform, including California.

678
00:54:39,780 --> 00:54:44,520
You'll see that from the moment, even from when the cap on damages in micro was upheld

679
00:54:44,520 --> 00:54:50,780
in February of 1985 through the passage of Proposition 103 in 1988, insurance premiums

680
00:54:50,780 --> 00:54:56,660
for doctors went up 47 percent just in the period alone, 190 percent since the passage

681
00:54:56,660 --> 00:54:57,100
of micro.

682
00:54:57,100 --> 00:55:01,520
It was not until voters got sick and tired of paying through their nose for insurance,

683
00:55:01,960 --> 00:55:06,980
for auto, homeowner business and medical malpractice that the vote went to the ballot box.

684
00:55:07,240 --> 00:55:12,660
The insurance industry spent $80 million trying to defeat this citizen backed initiative

685
00:55:12,660 --> 00:55:14,000
and it was approved.

686
00:55:14,500 --> 00:55:19,100
And right after that, as you can see, insurance premiums went down 20% for physicians.

687
00:55:20,380 --> 00:55:26,060
$135 million in refund checks out of a total of $1.2 billion in refunds were sent

688
00:55:26,060 --> 00:55:29,580
to the people of California, 135 million to physicians alone.

689
00:55:30,020 --> 00:55:37,780
Why? Because Proposition 103 mandated a 20% rollback, a rate freeze, stringent regulation

690
00:55:37,780 --> 00:55:43,840
of the insurance companies' profits, expenses, overhead, and important to this debate, projections

691
00:55:43,840 --> 00:55:48,660
of future losses, and as well as an elected insurance commissioner and a repeal of the antitrust

692
00:55:48,660 --> 00:55:52,980
exemption that allows them to circulate data that in essence allows them to determine

693
00:55:52,980 --> 00:55:55,360
how to set rates in a collaborative fashion.

694
00:55:55,940 --> 00:55:59,900
I want to use the last few moments of my time to talk about micro,

695
00:56:00,040 --> 00:56:01,500
but let me say this unequivocally.

696
00:56:02,120 --> 00:56:05,940
The discussion about limiting people's right to sue should be completely divorced

697
00:56:05,940 --> 00:56:09,800
from the issue of whether it's going to lower insurance premiums,

698
00:56:09,800 --> 00:56:12,720
because not in any state in the nation, not in California,

699
00:56:13,220 --> 00:56:17,520
not in Texas, not in Florida, not in any state have insurance rates gone down

700
00:56:17,520 --> 00:56:20,380
when people's right to go to court has been reduced.

701
00:56:20,380 --> 00:56:20,500
used.

702
00:56:21,060 --> 00:56:22,380
We have micro in California.

703
00:56:22,720 --> 00:56:23,480
I can tell you this.

704
00:56:23,600 --> 00:56:28,400
It has lowered the amount of money insurance companies pay out in claims, but make no mistake

705
00:56:28,400 --> 00:56:34,220
about it and understand this terrible insidious aspect of micro, the model for which you're

706
00:56:34,220 --> 00:56:35,500
considering in Texas today.

707
00:56:36,160 --> 00:56:43,520
Nobody, unless you're a Rockefeller or you're a Silicon Valley millionaire, nobody can find

708
00:56:43,520 --> 00:56:48,180
an attorney to take their case for medical malpractice because the combination of

709
00:56:48,180 --> 00:56:55,620
caps on damage awards and caps on attorney fees makes it financially impossible for an

710
00:56:55,620 --> 00:56:59,540
attorney to bring a medical malpractice suit in California today.

711
00:57:00,000 --> 00:57:02,000
That is the insidious aspect.

712
00:57:02,320 --> 00:57:03,580
These are not frivolous cases.

713
00:57:04,080 --> 00:57:09,040
These are the cases that are by definition legitimate because a jury has made an award

714
00:57:09,040 --> 00:57:10,700
which is then reduced.

715
00:57:11,580 --> 00:57:19,080
What has happened in California is that those who are most in need of representation in the

716
00:57:19,680 --> 00:57:26,340
courts have been denied access to the courts because of the caps on damages and the attorney's

717
00:57:26,340 --> 00:57:26,960
fees provisions.

718
00:57:27,820 --> 00:57:29,220
Finally, has it helped doctors?

719
00:57:29,720 --> 00:57:34,240
In a recent survey from the California Medical Association, 43% of surveyed physicians

720
00:57:34,240 --> 00:57:39,000
plan to leave the practice of medicine in California in the next three years.

721
00:57:39,000 --> 00:57:43,140
Where are all these physicians going when they leave Texas in California?

722
00:57:43,900 --> 00:57:45,300
MICRA is not the solution.

723
00:57:45,820 --> 00:57:49,120
I apologize for being so brief, and I thank you for your attention.

724
00:57:50,040 --> 00:57:50,600
Thank you.

725
00:57:51,740 --> 00:57:55,620
I'll try to give you some change because I don't want to shortchange Peggy.

726
00:57:58,420 --> 00:58:07,960
One of the things I think it's real important for the committee to think about is why Reggie James,

727
00:58:07,960 --> 00:58:10,820
Director, Southwest Regional Office of Consumer Union.

728
00:58:11,580 --> 00:58:20,360
Okay, in the brief time, I want to really get people to focus on why the Supreme Court held the original caps to be unconstitutional.

729
00:58:20,900 --> 00:58:24,640
They said that this was a violation of the open court doctrine in Texas.

730
00:58:25,160 --> 00:58:31,620
In that decision, the court said that they could contemplate a situation where there were caps,

731
00:58:31,620 --> 00:58:34,560
But there would have to be a trade-off.

732
00:58:34,760 --> 00:58:38,440
There would have to be a significant societal reason for doing this.

733
00:58:38,980 --> 00:58:43,600
Now when Chairman Nixon laid out the bill, he said that there was a reason and that was

734
00:58:43,600 --> 00:58:50,240
because we want to ensure availability of health care and that malpractice rates were making

735
00:58:50,240 --> 00:58:51,340
health care unavailable.

736
00:58:52,600 --> 00:58:54,700
That was the argument made at the time.

737
00:58:54,700 --> 00:59:00,220
And Dean Keaton brought that out also in his report and in his subsequent look at whether

738
00:59:00,220 --> 00:59:03,380
or not the law was actually going to work.

739
00:59:03,780 --> 00:59:09,140
And his comment as well as the court's comment were that that was speculative as to whether

740
00:59:09,140 --> 00:59:14,180
or not the liability system was the reason for high insurance rates.

741
00:59:14,560 --> 00:59:18,260
And I think what we've heard from Mr. Rosenfeld, there is a very large reasonable

742
00:59:18,260 --> 00:59:20,700
doubt that it's the liability system.

743
00:59:20,700 --> 00:59:25,900
I sit here, watch the legislature, and I see that we are debating homeowners, we're

744
00:59:25,900 --> 00:59:30,100
debating auto, or we're definitely going to have to debate auto, and we're looking at

745
00:59:30,100 --> 00:59:35,020
commercial liability rates being high, and I see a common factor across all these lines.

746
00:59:35,180 --> 00:59:39,580
And if you plot these things over time, all of the rates go up at the same time, and

747
00:59:39,580 --> 00:59:40,720
it's an insurance cycle.

748
00:59:41,080 --> 00:59:43,500
What we have is an insurance problem.

749
00:59:44,020 --> 00:59:47,500
There may be some issues of fairness in the liability system, but I would urge

750
00:59:47,500 --> 00:59:52,800
you to deal with those issues of fairness and not to have such a one-sided approach that

751
00:59:52,800 --> 00:59:59,100
creates such a burden and liability for just the plane of side, for the patient.

752
01:00:00,000 --> 01:00:04,920
I've walked through the bill and seen that it seems to create a number of hurdles, using

753
01:00:04,920 --> 01:00:10,060
the Chairman's term, for meritorious cases. And I hope that that's not really the intent.

754
01:00:10,520 --> 01:00:17,340
There are a lot of meritorious cases that are never brought. By the most of the studies

755
01:00:17,340 --> 01:00:23,080
that have looked at this show that there's a lot more malpractice that occurs than ever

756
01:00:23,080 --> 01:00:29,100
make it to the courthouse. About one in eight claims are made when malpractice occurs.

757
01:00:29,100 --> 01:00:33,580
So that means 7 out of 8 instances of malpractice acclaims never made.

758
01:00:34,200 --> 01:00:40,780
So if there was going to be a trade-off, in my opinion, it would be a trade-off that dealt

759
01:00:40,780 --> 01:00:46,340
with getting the people that 7 out of 8 who don't get any compensation, who never even

760
01:00:46,340 --> 01:00:48,760
file a claim, getting them some relief.

761
01:00:49,200 --> 01:00:53,640
And I would be happy to work with anybody in here, doctor, insurance company,

762
01:00:57,400 --> 01:00:57,580
butcher,

763
01:00:57,580 --> 01:01:04,000
a system that is more efficient and pays more people who are actually injured in the system.

764
01:01:04,260 --> 01:01:08,760
That's that 7 out of 8 that never even filed a claim that have now practiced, practiced upon them.

765
01:01:09,400 --> 01:01:14,840
The only way we could do that is through some sort of administrative process, possibly a no fault

766
01:01:14,840 --> 01:01:18,960
system, but that's not what we're talking about. That would be an appropriate trade-off,

767
01:01:19,040 --> 01:01:23,660
and I'd be willing to talk about CAPS and some other impediments, but not until that point.

768
01:01:23,660 --> 01:01:29,480
Until that point, I think what we have before us is just a one-sided bill that places unfair

769
01:01:29,480 --> 01:01:32,540
impediments on people who have been harmed in the medical system.

770
01:01:33,140 --> 01:01:35,140
And with that, I will turn it over to Ms. Venable.

771
01:01:36,140 --> 01:01:37,300
And let's throw our questions.

772
01:01:42,580 --> 01:01:42,780
Okay.

773
01:01:42,840 --> 01:01:43,120
Thank you.

774
01:01:45,120 --> 01:01:45,480
Hello.

775
01:01:45,800 --> 01:01:46,920
I'm Peggy Venable.

776
01:01:47,080 --> 01:01:49,340
I'm Director of Texas Citizens for a Sound Economy.

777
01:01:49,560 --> 01:01:54,620
We have 48,000 members in the state of Texas, and we support the legislation.

778
01:01:55,820 --> 01:02:02,640
We believe that the key components to what consumers need in healthcare in Texas are affordability,

779
01:02:03,260 --> 01:02:04,840
accessibility, and quality.

780
01:02:05,720 --> 01:02:08,920
We think that this legislation will enhance all three.

781
01:02:09,920 --> 01:02:14,680
Let me briefly just state that I had talked to my mother last night about this issue

782
01:02:14,680 --> 01:02:20,620
and she had told me that she had gone to her doctor yesterday with a form to ask

783
01:02:20,620 --> 01:02:28,280
that she be allowed into a wellness center there in Odessa, Texas.

784
01:02:28,480 --> 01:02:31,680
And my mother, Juanita, has seen this doctor for many years.

785
01:02:32,040 --> 01:02:34,380
And Dr. Whitton said he wouldn't sign the form.

786
01:02:34,620 --> 01:02:36,400
She thought there must be something wrong with me.

787
01:02:36,500 --> 01:02:38,500
She said, my blood pressure, what is the problem?

788
01:02:39,740 --> 01:02:41,340
And she said, I don't understand.

789
01:02:41,540 --> 01:02:42,480
Why won't you sign the form?

790
01:02:42,600 --> 01:02:45,600
He said, well, actually I think the wellness center program will be very good

791
01:02:45,600 --> 01:02:47,960
for you, but I won't sign the form.

792
01:02:47,960 --> 01:02:51,880
And she quickly realized it was because of liability, which she confirmed.

793
01:02:52,360 --> 01:02:56,240
She went to the wellness center and had to talk to the director and he said that doctor

794
01:02:56,240 --> 01:02:58,960
and lots of them don't sign that form just for that reason.

795
01:02:59,580 --> 01:03:03,320
And I think it's unfortunate when a doctor says, I think this treatment would be good

796
01:03:03,320 --> 01:03:06,000
for you, but I don't feel comfortable signing the form.

797
01:03:06,820 --> 01:03:11,160
I think that's the position that we have put doctors and consumers and patients

798
01:03:11,160 --> 01:03:12,420
in Texas.

799
01:03:12,420 --> 01:03:20,860
In this litigious society, how can we provide the quality care, the affordability, and not

800
01:03:20,860 --> 01:03:22,900
price consumers out of the marketplace?

801
01:03:24,000 --> 01:03:29,060
It would be easy to say if this room is full of doctors and personal injury trial lawyers,

802
01:03:29,160 --> 01:03:33,060
it would be easy to point the finger there.

803
01:03:33,440 --> 01:03:38,460
But we believe that personal injury trial lawyers argue that the threat of lawsuits

804
01:03:38,460 --> 01:03:41,480
promotes better care, ensures accountability.

805
01:03:42,240 --> 01:03:48,120
But those incentives are aligned only with a legal system

806
01:03:48,120 --> 01:03:52,480
that distinguishes between good and bad care.

807
01:03:53,180 --> 01:03:57,540
Most errors do go uncompensated as Reggie had mentioned.

808
01:03:58,240 --> 01:04:00,380
You know, we really think that we need to make sure the

809
01:04:00,380 --> 01:04:03,500
liability system serves patients and not just personal

810
01:04:03,500 --> 01:04:04,580
injured trial lawyers.

811
01:04:04,580 --> 01:04:10,880
To address quality, an HHS study released this summer,

812
01:04:11,140 --> 01:04:13,560
the U.S. Department of Health and Human Services.

813
01:04:13,980 --> 01:04:17,500
So the malpractice system does not accurately identify negligence,

814
01:04:17,860 --> 01:04:20,300
deter bad conduct, or provide justice.

815
01:04:20,860 --> 01:04:23,940
The results it obtains are unpredictable, even random.

816
01:04:24,560 --> 01:04:26,060
And it said the evidence is growing

817
01:04:26,060 --> 01:04:28,680
that there's a poor correlation between injuries caused

818
01:04:28,680 --> 01:04:32,700
by negligent medical treatment and malpractice litigation.

819
01:04:34,340 --> 01:04:38,860
I think quality certainly is a key issue, but affordability is an even,

820
01:04:39,460 --> 01:04:43,740
is an equally important issue in Texas as we've heard others say

821
01:04:43,740 --> 01:04:50,480
that physicians are leaving the state or leaving certain specialty practices

822
01:04:50,480 --> 01:04:53,840
because of the cost of their liability insurance.

823
01:04:54,280 --> 01:04:57,840
These costs are borne by every single one of us in Texas.

824
01:04:57,840 --> 01:05:06,220
Indirect costs are part of our costs as defensive medicine is practiced to try to avoid these lawsuits.

825
01:05:08,140 --> 01:05:13,200
Most victims of medical error, as has been said, don't file claims.

826
01:05:14,160 --> 01:05:20,460
HHS studies said that only 5% or less of those injured file a claim.

827
01:05:22,100 --> 01:05:27,360
However, it costs an average of $25,000 to defend each claim.

828
01:05:28,320 --> 01:05:31,200
Most of them being dismissed, those most that do file.

829
01:05:31,940 --> 01:05:38,160
You know, the key is we need, what we need to do is take care of consumers.

830
01:05:38,760 --> 01:05:42,980
And when a system begins to hurt the consumers, then we need to take a close look at the system.

831
01:05:43,300 --> 01:05:48,320
And I think common sense tells us that the personal injury lawyers don't have to win very often

832
01:05:48,320 --> 01:05:56,000
Because when they win, they win big and our system is full of the wasteful costs of large numbers of meritless lawsuits.

833
01:05:56,960 --> 01:05:59,740
I think the final issue being availability.

834
01:06:00,580 --> 01:06:06,520
Certainly availability of healthcare is being impacted.

835
01:06:06,800 --> 01:06:16,060
Rural residents particularly in South Texas and it most adversely I think are particularly pregnant women in Medicaid patients who are the most vulnerable.

836
01:06:16,760 --> 01:06:21,280
And I know TMA will be here and provide you with some of their studies and some of the

837
01:06:21,280 --> 01:06:24,220
information that they have put together.

838
01:06:24,640 --> 01:06:29,400
There's also one other interesting element, and that is when looking at this issue,

839
01:06:29,620 --> 01:06:36,400
we realize that the Office of Congressional Budget Office, CBO, when looking at federal

840
01:06:36,400 --> 01:06:44,560
legislation made a direct correlation between medical malpractice, liability reform,

841
01:06:44,560 --> 01:06:49,340
and costs both to the federal government and to employers.

842
01:06:49,820 --> 01:06:54,960
I think those same correlations would relate in Texas and I went into some of that

843
01:06:54,960 --> 01:06:57,160
and what I handed out in my material.

844
01:06:58,740 --> 01:06:59,180
Yes, sir.

845
01:07:01,200 --> 01:07:01,740
Thank you.

846
01:07:12,780 --> 01:07:14,880
You made an interesting statement.

847
01:07:15,200 --> 01:07:17,500
I'm not sure how to reconcile information.

848
01:07:17,980 --> 01:07:24,500
We know that about 85%, 86% of all medical malpractice claims filed

849
01:07:24,500 --> 01:07:31,800
end in a dismissal or of the claim or a verdict in the doctor's favor with no money paid out.

850
01:07:32,540 --> 01:07:38,200
Yet you said that seven of eight instances of malpractice claims are not made.

851
01:07:39,100 --> 01:07:44,980
And so I'm having a hard time sort of reconciling that those two sounds like there's a whole lot more claims,

852
01:07:45,120 --> 01:07:48,360
but the ones that are made are not being successfully prosecuted.

853
01:07:48,620 --> 01:07:53,080
So tell me how do we reconcile that information?

854
01:07:53,080 --> 01:07:58,680
Okay. Those stats are apples and oranges. Okay. One is only one out of eight instances

855
01:07:58,680 --> 01:08:05,740
of malpractice results in a claim. So we're talking seven eighths of the people don't

856
01:08:05,740 --> 01:08:11,520
do anything. But there's no claim letter. There's no claim made period. And of the one eighth

857
01:08:11,520 --> 01:08:22,660
that's left, 85% or 86% of those people result in no finding or zero judgment. And my answer

858
01:08:22,660 --> 01:08:30,000
to that is I don't think that it means that those 85 or 86 claims are frivolous cases.

859
01:08:30,820 --> 01:08:36,340
I think it means typically it means they're low dollar cases and that's a result of the

860
01:08:36,340 --> 01:08:43,000
reforms that we did in 95 or I think it was 95 when we required an expert and we required

861
01:08:43,000 --> 01:08:47,180
a bond and it was already difficult to get a lawyer to take a case.

862
01:08:47,720 --> 01:08:50,480
It's even more difficult to get a lawyer to take a case now.

863
01:08:50,480 --> 01:08:57,540
I think the typical plaintiff's attorney is not going to take a case that doesn't, you know,

864
01:08:57,660 --> 01:08:59,240
that's not going to pay them off.

865
01:08:59,480 --> 01:09:03,100
And I wish they would do it out of the goodness of their heart, but it's a business for them.

866
01:09:04,240 --> 01:09:08,240
I think that answers a lot of why those cases don't proceed.

867
01:09:08,620 --> 01:09:09,260
Thank you.

868
01:09:09,560 --> 01:09:11,200
There are some people who want to answer questions.

869
01:09:11,400 --> 01:09:11,980
Mr. Krusey.

870
01:09:13,000 --> 01:09:17,180
I'm confused about this 85% figure, too, about what's in it.

871
01:09:17,180 --> 01:09:25,640
85% that includes the dismissals, that includes the plaintiffs that got zeroed.

872
01:09:26,360 --> 01:09:27,760
What about the settlements?

873
01:09:28,380 --> 01:09:31,100
Is that in the 85% or is that in the 15%?

874
01:09:31,820 --> 01:09:36,500
The 15% are judgments awarded against where the settlements go?

875
01:09:36,960 --> 01:09:42,920
I think it is apples and oranges and I'm not sure, Mr. Chairman, where the numbers

876
01:09:42,920 --> 01:09:50,900
numbers come from. If it's Mr. Montesier's numbers, the 85% he is talking about are letters

877
01:09:50,900 --> 01:09:56,900
that are sent under Article 4590 I. So these aren't lawsuits, none at all. In fact, whenever

878
01:09:56,900 --> 01:10:01,460
you have a health care case and you want to get medical records to evaluate the case,

879
01:10:01,580 --> 01:10:07,680
you send an Article 4590 I letter by insurance department regulations. That is a law of

880
01:10:07,680 --> 01:10:14,800
is a claim. And so 85% of those never go anywhere, even though it's really just kind of discovery

881
01:10:14,800 --> 01:10:19,040
to figure out whether you should file a claim to find out if there is a claim. So then you've

882
01:10:19,040 --> 01:10:24,860
got a universe of 15% that are pursued. And it's that universe that you're talking about

883
01:10:24,860 --> 01:10:28,720
that that either turns into litigation. I'm a chairman, I stand to be corrected.

884
01:10:28,820 --> 01:10:33,340
But I think that's where the 85% comes from where the settlements, one of those they

885
01:10:33,340 --> 01:10:34,140
It would be in the 15.

886
01:10:34,400 --> 01:10:35,060
Those are in the 15.

887
01:10:35,280 --> 01:10:35,320
Yeah.

888
01:10:35,500 --> 01:10:35,740
Okay.

889
01:10:36,540 --> 01:10:37,580
I think that's correct.

890
01:10:39,000 --> 01:10:39,360
Yes.

891
01:10:39,860 --> 01:10:40,120
Mr. King.

892
01:10:40,780 --> 01:10:41,520
I've really got two questions.

893
01:10:41,720 --> 01:10:43,000
One, first one from Mr. Rosenfield.

894
01:10:43,160 --> 01:10:45,840
Could you get your poster back up again?

895
01:10:48,700 --> 01:10:48,940
Thanks.

896
01:10:49,100 --> 01:10:49,280
Thanks.

897
01:10:50,160 --> 01:10:57,540
You've got a, you've got the spike that's going on from 1982 up until 1989.

898
01:10:57,540 --> 01:11:05,760
89. And then you've got a downturn, which I guess 80-9 is when 103 went into a phase,

899
01:11:06,540 --> 01:11:11,380
which rollback was mandatory rollbacks. And then you've got it kind of flattening out

900
01:11:11,380 --> 01:11:19,900
around 90-91. And then it starts moving back up to where it gets close to the 1988 levels.

901
01:11:19,900 --> 01:11:21,000
and then you kind of got a hook.

902
01:11:25,820 --> 01:11:31,080
Rollbacks, as I understand them to work in terms of economics, typically will do just

903
01:11:31,080 --> 01:11:31,320
that.

904
01:11:31,500 --> 01:11:40,720
You'll see a quick reduction and then you begin to see it climb back up as it doesn't

905
01:11:40,720 --> 01:11:44,620
really fix the long-term problem, what you're trying to address.

906
01:11:44,900 --> 01:11:47,860
It's just kind of a quick fix and then market forces kind of pull it back up.

907
01:11:48,520 --> 01:11:49,580
Is that what happened here?

908
01:11:49,580 --> 01:11:53,680
You just had a quick rollback, but it really didn't fix the underlying problems, or is

909
01:11:53,680 --> 01:11:56,600
there something else that caused it to begin to grow from 1990 on?

910
01:11:56,760 --> 01:11:57,460
A couple of answers.

911
01:11:57,740 --> 01:12:01,340
First, if you would look at this graph from every other state and nation, caps or no caps,

912
01:12:01,720 --> 01:12:02,720
there would be no drop.

913
01:12:03,160 --> 01:12:04,480
It would just continue to soar.

914
01:12:05,100 --> 01:12:09,280
Second, it wasn't just the Proposition 103 rollbacks, which are, of course, mathematically

915
01:12:09,280 --> 01:12:10,060
reflected here.

916
01:12:10,600 --> 01:12:15,080
With that reflect, since every company had the option to go and demand a hearing,

917
01:12:15,140 --> 01:12:19,480
which before the interest commission to justify paying no rollback, what these

918
01:12:19,480 --> 01:12:22,480
These rollbacks mean whether they were for medical malpractice insurance companies or

919
01:12:22,480 --> 01:12:26,080
auto or homeowners, was that they were able to cut 20 percent.

920
01:12:26,280 --> 01:12:30,140
That's how at least as much as their rates were in excess of what they should have been.

921
01:12:30,880 --> 01:12:34,940
If you look here after, however, one thing that is an interesting comparison, you have

922
01:12:34,940 --> 01:12:37,040
that in the materials I handed out, you're correct.

923
01:12:37,240 --> 01:12:41,200
After that, rates do begin to rise, although they still have not in California reached

924
01:12:41,200 --> 01:12:43,580
the high level they were at in 1988.

925
01:12:44,440 --> 01:12:48,040
If you look everywhere else in the country, you'll see normally a sharper rate of

926
01:12:48,040 --> 01:12:53,500
increase in medical malpractice insurance premiums, particularly now in the midst of our third

927
01:12:54,100 --> 01:12:58,120
insurance crisis in the last three decades, but you'll see wild gyrations.

928
01:12:58,860 --> 01:13:04,020
It is the stringent regulation of Proposition 103 as well as eliminating the insurance industry's

929
01:13:04,020 --> 01:13:11,360
exemption from the antitrust laws that prevents the instability, the dramatic fluctuations

930
01:13:11,360 --> 01:13:17,580
up and down that characterize medical malpractice insurance premiums in every other state but

931
01:13:17,580 --> 01:13:25,000
California. This is a slow, steady, stable line. And that's because Proposition 103 says

932
01:13:25,000 --> 01:13:32,000
that normally rates are strictly regulated, but it's also both upside and downside. In

933
01:13:32,000 --> 01:13:37,900
California, you can face a hearing required by either the Department of Insurance or a

934
01:13:37,900 --> 01:13:43,500
citizen group if the rate increases too high and a hearing is demanded. But also,

935
01:13:43,500 --> 01:13:50,860
If you violate the Proposition 103 regulations by reducing your medical malpractice premiums

936
01:13:50,860 --> 01:13:57,040
below sensible levels, as so often has occurred, creating the crisis that occurs now around

937
01:13:57,040 --> 01:14:00,300
the country, you can also run into trouble with the Department of Insurance.

938
01:14:00,560 --> 01:14:04,660
It's the formula that regulates the rate of return, the expenses, the overhead, and

939
01:14:04,660 --> 01:14:09,320
the projections of future losses that, as we all know, often do not materialize

940
01:14:09,320 --> 01:14:10,820
after the crisis goes away.

941
01:14:10,820 --> 01:14:17,800
Those are the provisions of Prop. 103's regulatory process that are responsible for controlling the rate of growth.

942
01:14:17,920 --> 01:14:20,200
You won't see any kind of chart like this from any other state.

943
01:14:22,100 --> 01:14:27,680
If you start in 1976, when did microbeginner or microbeginner begin to be enforced?

944
01:14:28,340 --> 01:14:29,420
We call it microbeginner.

945
01:14:30,240 --> 01:14:31,900
Microbeginner began to be enforced almost immediately.

946
01:14:32,200 --> 01:14:35,500
However, there was litigation against all provisions of the measure.

947
01:14:36,160 --> 01:14:42,200
I've heard many physicians say, or a physician insurance company representatives say, well,

948
01:14:42,220 --> 01:14:46,680
it's not really fair to look at this spike here because the microcap, the most onerous

949
01:14:46,680 --> 01:14:51,560
part of micro, wasn't upheld by the State Supreme Court until February of 1985.

950
01:14:52,300 --> 01:14:55,700
But I think if you look at the chart, it's very clear that afterwards upheld, as I

951
01:14:55,700 --> 01:14:59,920
mentioned before, the premiums continued to grow by 47 percent.

952
01:15:07,120 --> 01:15:12,500
It's your position that what we see from 76 to 82 had nothing to do with micro?

953
01:15:13,340 --> 01:15:26,020
Well, I'll tell you one thing. If I had in your materials, I think you have this that I distributed, first of all, you will see reductions in the amount of money paid out by insurance companies through all this period.

954
01:15:26,020 --> 01:15:29,740
because, in fact, they were allowed to pay out less under micro.

955
01:15:30,220 --> 01:15:32,740
What you do not see, you see a little bit of bump there.

956
01:15:33,140 --> 01:15:37,100
If you look at 1981-82, that's where interest rates, as you will recall,

957
01:15:37,400 --> 01:15:39,020
from the early 80s were extremely high,

958
01:15:39,420 --> 01:15:41,960
and insurance companies were competing all over the place.

959
01:15:42,480 --> 01:15:45,780
That's the so-called bottom of the trough of the insurance cycle.

960
01:15:46,200 --> 01:15:50,160
So you see a little dip there, but then you see, as the next insurance crisis begins,

961
01:15:50,280 --> 01:15:51,360
you see a vast increase.

962
01:15:51,800 --> 01:15:54,560
During that period, all the way to the passage of Prop 103,

963
01:15:54,560 --> 01:15:59,740
Three, insurance companies for MedMal insurance companies in California never paid out more

964
01:15:59,740 --> 01:16:05,120
than 31 cents of every premium dollar that physicians paid to victims.

965
01:16:05,460 --> 01:16:10,940
Victims got 31 cents on the dollar, the rest went to overhead, expenses, etc.

966
01:16:11,540 --> 01:16:19,180
What did we see if that chart had gone back to the left prior to 1976, what would we have

967
01:16:19,180 --> 01:16:19,480
seen?

968
01:16:21,430 --> 01:16:23,550
I was in, I just graduated college.

969
01:16:23,550 --> 01:16:26,110
I do not have that data.

970
01:16:26,150 --> 01:16:33,430
The reason I'm asking and I'm really not trying to nitpick to death, but it looks like going

971
01:16:33,430 --> 01:16:39,030
by everything that you've said, it looks like that you did have a net effect, a net gain

972
01:16:40,070 --> 01:16:42,990
from 76 to 82 for micro.

973
01:16:43,690 --> 01:16:48,670
And then, if I understand correctly, you had a new crisis that set in that was primarily

974
01:16:48,670 --> 01:16:57,270
related to return on investments and what not, and that caused a big spike and then you

975
01:16:57,270 --> 01:17:02,630
pass 103 which has its net effect that a rollback would have bring it down 20% and then it becomes

976
01:17:02,630 --> 01:17:08,910
to come back up. So it looks to me, just looks at the chart like micro was at least

977
01:17:08,910 --> 01:17:15,510
had some positive effect. At least it did until 1982 when other, when new things

978
01:17:15,510 --> 01:17:19,190
came into the model that changed the industry.

979
01:17:19,410 --> 01:17:20,710
Well, another way to answer that, I guess,

980
01:17:20,790 --> 01:17:22,770
another way to look at that is, I think you see,

981
01:17:22,830 --> 01:17:25,710
I wouldn't be surprised if the 76 number represents

982
01:17:25,710 --> 01:17:27,410
a high point compared to prior years

983
01:17:27,410 --> 01:17:28,750
that we don't have data.

984
01:17:29,290 --> 01:17:31,150
Was it fairly flat before the hour?

985
01:17:31,410 --> 01:17:33,110
I wouldn't be surprised if it was going up and down

986
01:17:33,110 --> 01:17:34,990
like it did before micropass.

987
01:17:35,410 --> 01:17:37,090
I think you've just made the argument

988
01:17:37,090 --> 01:17:39,690
why micro doesn't work, because the point is here

989
01:17:39,690 --> 01:17:43,210
that if we're talking about insurance premiums,

990
01:17:43,210 --> 01:17:46,810
we pay pass micro and it and for reasons that have nothing to do with

991
01:17:46,810 --> 01:17:47,650
tour reform

992
01:17:47,650 --> 01:17:51,470
uh... so-called for a form it started to go up in the mid eighties that's

993
01:17:51,470 --> 01:17:52,250
exactly the point

994
01:17:52,250 --> 01:17:55,350
the only thing that is lowered insurance premiums

995
01:17:55,350 --> 01:17:56,710
in california

996
01:17:56,710 --> 01:18:01,010
it in this significant way is the passage of a voter approved mandate the

997
01:18:01,010 --> 01:18:01,970
rates be rolled back

998
01:18:01,970 --> 01:18:02,970
and regulated

999
01:18:02,970 --> 01:18:05,890
uh... otherwise you're right if you have the same extraneous

1000
01:18:06,510 --> 01:18:07,030
influences

1001
01:18:07,030 --> 01:18:09,070
affecting the insurance rates

1002
01:18:09,630 --> 01:18:12,310
after micro past as you did presumably before

1003
01:18:12,310 --> 01:18:14,970
And it wasn't until that was gotten under control.

1004
01:18:15,250 --> 01:18:18,870
And of course none of that had to do, none of what happened here with the passenger 103.

1005
01:18:19,030 --> 01:18:21,450
I didn't have to do with restricting people's right to sue.

1006
01:18:21,690 --> 01:18:25,970
Do you have, because, and please don't take this ugly because I don't mean to sound that way,

1007
01:18:26,390 --> 01:18:33,590
but unless you go back prior to the passage of micro, that chart really is of no significance.

1008
01:18:33,890 --> 01:18:37,590
Because in any industry you're going to see, or I think what you're saying is

1009
01:18:37,590 --> 01:18:42,710
in this industry, you're going to have seen substantial fluctuations before and after.

1010
01:18:43,350 --> 01:18:49,590
And so to me, I have trouble seeing any relevance in the chart unless we can go back 20 years

1011
01:18:49,590 --> 01:18:51,590
before and compare that.

1012
01:18:51,710 --> 01:18:54,070
And if you can provide that, I'd really like to look at it.

1013
01:18:54,830 --> 01:18:57,970
We had to buy the data from the National Association of Insurance Companies upon

1014
01:18:57,970 --> 01:18:58,710
which this is based.

1015
01:18:59,030 --> 01:19:00,090
I'll try and get it.

1016
01:19:00,750 --> 01:19:02,990
I would just disagree respectfully in this sense.

1017
01:19:03,150 --> 01:19:04,310
I think this shows the answer.

1018
01:19:04,310 --> 01:19:09,190
micro was not the answer to the physician's problems because after micro was

1019
01:19:09,190 --> 01:19:14,790
passed and even after the cap was upheld premiums that they paid skyrocketed.

1020
01:19:14,910 --> 01:19:18,390
And say I'm not I'm not saying you're right or wrong I'm saying because I'm

1021
01:19:18,390 --> 01:19:21,550
not convinced that this is going to bring down insurance but I'm just

1022
01:19:21,550 --> 01:19:27,150
saying that it's unfair to ask the committee to consider that as a

1023
01:19:27,150 --> 01:19:33,290
definitive report because you've got to look at any

1024
01:19:33,290 --> 01:19:41,870
any scale like that, you've got to go back prior to the date of the initiating occurrence.

1025
01:19:42,450 --> 01:19:45,190
Otherwise, you don't have anything to compare before and after to.

1026
01:19:45,290 --> 01:19:54,830
All you're looking at is after, and it just doesn't say what you're saying it says.

1027
01:19:55,030 --> 01:19:56,150
And I don't mean to say that other way.

1028
01:19:56,270 --> 01:19:58,430
It's just basic economics.

1029
01:19:59,210 --> 01:20:01,770
I disagree with you, but I understand what you're saying.

1030
01:20:01,770 --> 01:20:03,350
I'll try to find out if we can get that.

1031
01:20:03,370 --> 01:20:06,110
I don't know the answer, and I'd like to know it.

1032
01:20:06,290 --> 01:20:09,350
I think ask anybody else in any other state and you won't find this chart.

1033
01:20:09,590 --> 01:20:12,350
But I'll try to get that past data to see if I can provide it to you.

1034
01:20:12,390 --> 01:20:12,490
Thanks.

1035
01:20:12,730 --> 01:20:17,690
Ms. Roosevelt, let me ask one quick question, and I'll recognize Mike.

1036
01:20:19,930 --> 01:20:20,870
Unless it's really important.

1037
01:20:20,970 --> 01:20:25,510
Well, I'm having, I wanted to ask Phil, because I'm having trouble following it.

1038
01:20:25,590 --> 01:20:25,930
Is that okay?

1039
01:20:26,270 --> 01:20:28,230
I'm having trouble following myself, so that's understandable.

1040
01:20:32,670 --> 01:20:38,650
I thought you were trying to make the point that Micra had some effect between 76 and 83.

1041
01:20:38,930 --> 01:20:41,290
But as I understood, Dr. Anderson was here last week.

1042
01:20:41,410 --> 01:20:45,590
He was saying that Micra had an effect when the caps went in.

1043
01:20:46,350 --> 01:20:51,410
And so there were no caps from 76 to 83, and yet it's flat.

1044
01:20:51,990 --> 01:21:01,290
And so to me that shows that whatever the reason was the premiums were flat for those six seven years

1045
01:21:01,290 --> 01:21:06,210
it wasn't because of micro that's and that's my question I can't tell from looking at the chart the

1046
01:21:06,210 --> 01:21:11,070
representation was the chart shows that that micro had no effect and I'm just saying we don't

1047
01:21:11,070 --> 01:21:15,790
know unless that chart goes backwards 20 years well we know it wasn't the cap well actually

1048
01:21:15,790 --> 01:21:20,730
Really the caps were declared constitutional, but they were in effect in part of the law

1049
01:21:20,730 --> 01:21:25,230
as early as 1976.

1050
01:21:26,650 --> 01:21:29,450
And they were upheld by the California Supreme Court.

1051
01:21:29,630 --> 01:21:31,310
Those six years the caps were there.

1052
01:21:31,590 --> 01:21:32,050
They were there.

1053
01:21:32,070 --> 01:21:38,010
They were there, but they were not applied uniformly because it was in dispute and litigation.

1054
01:21:38,230 --> 01:21:43,570
What really affected the outcome I think in those years is in settlements where the insurer

1055
01:21:43,570 --> 01:21:47,910
and the negligent or incompetent physician would say, well, you're going to be stuck

1056
01:21:47,910 --> 01:21:48,090
with it.

1057
01:21:48,090 --> 01:21:51,870
Your client's going to only get 250 non-economic damages anyhow, because that's eventually

1058
01:21:51,870 --> 01:21:52,550
going to be upheld.

1059
01:21:52,690 --> 01:21:54,770
And so that's how it really came to play.

1060
01:21:55,210 --> 01:21:59,310
But Mr. Anderson doesn't have a good argument because he can't explain what happened

1061
01:21:59,310 --> 01:22:00,730
after the caps are upheld.

1062
01:22:01,050 --> 01:22:03,610
Michael was supposed to prevent what happened after the caps.

1063
01:22:03,750 --> 01:22:06,810
Well, one of the reasons why you might have an increase in premiums is because

1064
01:22:06,810 --> 01:22:14,150
you have a higher incidence of malpractice itself and that you may have an increase in

1065
01:22:14,150 --> 01:22:14,930
number of claims.

1066
01:22:15,390 --> 01:22:19,230
I can tell you unequivocally, and I will get that data for you, that did not occur in the

1067
01:22:19,230 --> 01:22:19,690
80s.

1068
01:22:19,830 --> 01:22:20,090
All right.

1069
01:22:20,330 --> 01:22:23,650
I have a question with regard to that if I may, Ms. Rosenfeld.

1070
01:22:25,090 --> 01:22:27,450
No, no, go ahead and leave it up.

1071
01:22:27,590 --> 01:22:33,710
It says total premiums are in California now, is that chart a total premiums of

1072
01:22:33,710 --> 01:22:39,570
all policies in California were just a malpractice, just medical malpractice policies.

1073
01:22:40,590 --> 01:22:46,270
It does include hospitals and it does include everything that was paid and thus reported

1074
01:22:46,270 --> 01:22:49,410
by insurers to the National Association of Insurance Commissioners.

1075
01:22:49,530 --> 01:22:54,330
My understanding is that you told us earlier that there are doctors who are still leaving

1076
01:22:54,330 --> 01:22:55,450
California today.

1077
01:22:56,610 --> 01:22:58,110
Can I correct that a little bit?

1078
01:22:58,250 --> 01:22:59,190
Maybe I give you a misimpression.

1079
01:22:59,190 --> 01:23:05,230
I quoted a study done by the California Medical Association that said doctors said they were

1080
01:23:05,230 --> 01:23:06,550
going to leave California today.

1081
01:23:07,210 --> 01:23:12,350
I don't believe it personally that whatever that number was, 75% said they'd leave in

1082
01:23:12,350 --> 01:23:12,930
three years.

1083
01:23:13,430 --> 01:23:14,230
I don't believe it.

1084
01:23:14,310 --> 01:23:18,530
But that's what they were saying and 43% plan to leave medical practice in the next

1085
01:23:18,530 --> 01:23:18,850
three years.

1086
01:23:18,990 --> 01:23:19,650
I don't believe it.

1087
01:23:19,730 --> 01:23:23,710
Just like I don't believe with all the respect to those who testified here doctors

1088
01:23:23,710 --> 01:23:25,210
that they're leaving the state today.

1089
01:23:25,210 --> 01:23:36,530
All right. Well, here's my question. You really assert that it was Proposition 103 that caused

1090
01:23:37,010 --> 01:23:40,290
there to be a decrease in malpractice premiums.

1091
01:23:42,370 --> 01:23:45,270
So here's my question. Why would the doctors

1092
01:23:45,270 --> 01:23:49,950
respond? I'm going to assume that this is a voluntary deal. It's not going to make

1093
01:23:49,950 --> 01:23:55,990
up the interest, but why would they respond if they would be relieving if the malpractice

1094
01:23:56,790 --> 01:23:58,170
premiums are so much less now?

1095
01:24:00,210 --> 01:24:04,570
Because I think it's the rate of, the number of things, the rate of growth of malpractice

1096
01:24:04,570 --> 01:24:06,390
premiums continues to go up.

1097
01:24:06,870 --> 01:24:11,330
One thing you have to understand about Proposition 103, there are thousands of rate applications

1098
01:24:11,330 --> 01:24:12,910
every year for increases.

1099
01:24:13,390 --> 01:24:17,830
Most of them get only cursory examination, and it's only when a citizen group like

1100
01:24:17,830 --> 01:24:23,230
or the Department of Insurance itself objects that there's any kind of formal proceeding.

1101
01:24:24,030 --> 01:24:30,870
To my astonishment, no physician ever challenged a rate increase, and there have been substantial ones.

1102
01:24:31,370 --> 01:24:36,370
So four months ago, our organization, which normally doesn't feel like it has to represent the interests of doctors,

1103
01:24:36,590 --> 01:24:41,710
we mostly concentrate on consumers and taxpayers, we actually challenged a 15% rate increase

1104
01:24:41,710 --> 01:24:45,790
for the first time requested by the second largest medical malpractice carrier in the state.

1105
01:24:45,790 --> 01:24:49,490
But I want to get to, I guess to go back to your question.

1106
01:24:50,070 --> 01:24:53,150
I think part of it is that premiums are still going up.

1107
01:24:53,230 --> 01:24:56,010
I believe they're still too high for medical malpractice in California

1108
01:24:56,010 --> 01:25:01,410
because there hasn't been sufficient adequate review of their requests for rate increases.

1109
01:25:01,890 --> 01:25:06,630
But it's also clear that profit-driven medicine, HMO is another concept

1110
01:25:06,630 --> 01:25:09,350
that I'm ashamed to say California pioneered.

1111
01:25:09,750 --> 01:25:14,370
The HMO has seriously injured the doctor-patient relationship

1112
01:25:14,370 --> 01:25:21,030
to the point where many physicians are very unhappy practicing in California and that

1113
01:25:21,030 --> 01:25:26,910
is why of course in this debate physicians have aligned themselves or some minority

1114
01:25:26,910 --> 01:25:30,530
I believe of physicians that align themselves with the insurance industry against the interests

1115
01:25:30,530 --> 01:25:34,670
of their patients. When in fact really the interest is in a lot, we should be concerned

1116
01:25:34,670 --> 01:25:40,710
about letting physicians practice medicine without having a bean counter looking over

1117
01:25:40,710 --> 01:25:44,150
their shoulders and that's what we've really concentrated in the last five years on.

1118
01:25:45,110 --> 01:25:48,770
Is there any explanation as to why the doctors who would have

1119
01:25:48,770 --> 01:25:52,250
a vested financial interest in asking their own

1120
01:25:54,070 --> 01:25:56,670
rates not be increased or rolled back

1121
01:25:56,670 --> 01:26:00,810
why they haven't moved forward and allowed your non-profit group to do that for them?

1122
01:26:02,310 --> 01:26:04,850
Representative, Mr. Chairman, I wish I knew the

1123
01:26:04,850 --> 01:26:08,770
answer to that. I suspect it has to do with some, a lack of knowledge

1124
01:26:08,770 --> 01:26:10,130
on the part of most physicians.

1125
01:26:10,670 --> 01:26:14,390
I've discovered that physicians can be great doctors but they're not necessarily great

1126
01:26:14,390 --> 01:26:20,630
consumers and they don't really know how to use the process of intervening or maybe

1127
01:26:20,630 --> 01:26:28,210
that they object to regulation ideologically and therefore even though they want to cut

1128
01:26:28,210 --> 01:26:31,070
off the noses despite their face they're not going to take advantage of the powerful

1129
01:26:31,070 --> 01:26:36,970
tool that is before them but I would say before and let me in this sense close on

1130
01:26:36,970 --> 01:26:41,090
your comment, I would say this committee, the same thing that the physicians are supposed

1131
01:26:41,090 --> 01:26:46,870
to stand for in this country, first, do no harm. First, focus on insurance reform before

1132
01:26:46,870 --> 01:26:51,210
you contemplate the restrictions of the rights of innocent victims of medical malpractice.

1133
01:26:51,490 --> 01:26:55,450
I wish the physicians in California would have focused on that back in the 70s.

1134
01:26:56,250 --> 01:27:00,670
I have a few other questions of you, if I may.

1135
01:27:01,010 --> 01:27:01,170
Sure.

1136
01:27:01,170 --> 01:27:06,430
Have you had an opportunity to look at the report of our Insurance Commissioner Jose

1137
01:27:06,430 --> 01:27:15,170
Montemayor as he compares malpractice premiums for the same field of medicine in California

1138
01:27:15,170 --> 01:27:18,650
and in various states as he compares here in Texas?

1139
01:27:19,130 --> 01:27:20,210
I have not.

1140
01:27:20,470 --> 01:27:25,150
Although I have seen in literature from the industry, the insurance industry, comparisons

1141
01:27:25,150 --> 01:27:30,430
with the average physician pays in, say, LA versus Tauhassee, Florida, but I'm

1142
01:27:30,430 --> 01:27:32,910
I'm sorry, I've not looked at the Texas information.

1143
01:27:33,850 --> 01:27:40,270
If I tell you that the average in Texas is more similar to that in Tallahassee or Miami,

1144
01:27:40,590 --> 01:27:49,130
Florida than it is to Los Angeles or California, are you aware of the disparity between, say,

1145
01:27:49,370 --> 01:27:53,690
Florida and California, and do you have an explanation as to why that exists?

1146
01:27:54,650 --> 01:28:02,550
Mr. Chairman, I am very suspicious of data that I cannot – did

1147
01:28:04,660 --> 01:28:06,140
I take it too long a

1148
01:28:06,140 --> 01:28:06,680
pause there?

1149
01:28:07,360 --> 01:28:12,360
I am very suspicious of data provided by the insurance and medical lobbies, which I cannot

1150
01:28:12,360 --> 01:28:12,880
verify.

1151
01:28:13,040 --> 01:28:17,120
As I can by calling the National Association of Insurance Commissioners, I've seen apples

1152
01:28:17,120 --> 01:28:22,460
and oranges mixed up, you know, a general physician in Los Angeles versus an OBGYN

1153
01:28:22,460 --> 01:28:23,580
in Tallahassee.

1154
01:28:25,460 --> 01:28:29,380
If you would like me to respond, which I'd love to do in writing in terms of that question,

1155
01:28:29,740 --> 01:28:35,760
I would ask you to request a data call from the medical insurers who, when I inquired

1156
01:28:35,760 --> 01:28:41,760
about this in Texas, I'm told that they don't submit and one cannot obtain from the trust

1157
01:28:41,760 --> 01:28:46,360
medical insurer data of the kind that you were just asking me.

1158
01:28:46,540 --> 01:28:47,420
I'd like to see that.

1159
01:28:48,640 --> 01:28:50,280
What I can say is this.

1160
01:28:50,280 --> 01:28:53,860
I think we have someone here from the Texas Department of Insurance who can help us with

1161
01:28:53,860 --> 01:28:54,540
that information.

1162
01:28:55,060 --> 01:28:59,720
Well, I guess my response would be if you pass a law requiring insurance to disclose

1163
01:28:59,720 --> 01:29:05,560
this information, then you could have the kind of enlightened and informed discussion

1164
01:29:05,560 --> 01:29:11,320
of it rather than what I see on these, I get these pie charts and bar graphs from the

1165
01:29:11,320 --> 01:29:15,600
insurance industry and the medical associations based on data that is not available to

1166
01:29:15,600 --> 01:29:15,940
the public.

1167
01:29:16,100 --> 01:29:19,360
So I guess I don't feel it's proper to comment on it.

1168
01:29:19,360 --> 01:29:22,440
You know, it's interesting that we had an opportunity, I think, to vote on a bill that

1169
01:29:22,440 --> 01:29:26,220
did that very thing a couple of days ago and right now, of course.

1170
01:29:28,180 --> 01:29:30,960
Just sort of one last question that went for you.

1171
01:29:31,120 --> 01:29:36,840
I mean, you know, I know you said the doctors in California are reporting that they are

1172
01:29:36,840 --> 01:29:42,560
not going to leave, but in Texas we know that they are, in fact, voting with their

1173
01:29:42,560 --> 01:29:43,920
feet are leaving.

1174
01:29:46,260 --> 01:29:52,920
138 counties in the state have no pediatrician and 158 counties have

1175
01:29:52,920 --> 01:29:59,680
no OBGYNs. Are you aware of that? No, I wasn't. Anybody else on this panel aware of that?

1176
01:30:00,530 --> 01:30:05,470
I've seen some of those stats. I'd like to check some of that material. But there is another

1177
01:30:05,470 --> 01:30:12,390
factor that's going on here. And with doctors leaving, a person may say, I'm leaving because

1178
01:30:12,390 --> 01:30:19,130
of this reason. But it's probably a lot of reasons. And one of the reasons is we've seen

1179
01:30:19,130 --> 01:30:28,010
a huge decline in rural counties in the state. But everybody is leaving those communities.

1180
01:30:28,010 --> 01:30:35,870
We've had hospitals close in a number of those communities for whatever reason because they've been either purchased and closed by larger entities.

1181
01:30:36,530 --> 01:30:46,170
We've got just a huge economic shift, and Texas is now one of the most urban states in the United States, and that's not the image that we typically have of Texas,

1182
01:30:46,310 --> 01:30:53,330
but we've got this huge exodus from rural communities, and doctors are part of the group exiting.

1183
01:30:54,230 --> 01:30:59,270
Let me read from that report, more than 25% of physicians had difficulty in recruiting doctors

1184
01:30:59,270 --> 01:31:04,990
in Los Angeles, Orange, Riverside, San Diego, Ventura, Marin, Del Norte, San Luis Obispo,

1185
01:31:05,670 --> 01:31:08,230
Tahama, and Shasta Trinity Counties.

1186
01:31:08,450 --> 01:31:10,150
I mean, I'll leave the report with the committee.

1187
01:31:10,430 --> 01:31:10,950
It's lengthy.

1188
01:31:11,170 --> 01:31:12,690
I didn't want to reproduce it for that reason.

1189
01:31:12,930 --> 01:31:19,410
But according to this, these findings foretell a dark and starling picture concerning physician supply

1190
01:31:19,410 --> 01:31:20,150
in California.

1191
01:31:20,150 --> 01:31:23,650
They predict the future with many fewer physicians.

1192
01:31:23,950 --> 01:31:24,470
I

1193
01:31:26,710 --> 01:31:28,770
think that's what we're talking about here in Texas.

1194
01:31:28,930 --> 01:31:30,590
Ms. Woolly had a question.

1195
01:31:31,470 --> 01:31:36,530
Mr. James, unless you want to call Houston, Texas a rural community,

1196
01:31:37,810 --> 01:31:46,210
Spring Branch Hospital in my district closed their OBGYN department because of,

1197
01:31:46,550 --> 01:31:50,710
and that was a reason cited, was they couldn't afford the insurance anymore.

1198
01:31:51,290 --> 01:31:56,750
It's really, I'm perfectly sympathetic to the high cost of insurance on the medical

1199
01:31:56,750 --> 01:31:57,210
community.

1200
01:31:57,770 --> 01:31:59,730
I just think there are a lot of other factors.

1201
01:32:00,150 --> 01:32:04,210
It's getting difficult to practice medicine the way a doctor practiced medicine when

1202
01:32:04,210 --> 01:32:04,990
I was a little kid.

1203
01:32:05,510 --> 01:32:08,050
We had a very close relationship with our doctor.

1204
01:32:08,270 --> 01:32:11,250
I mean, I like my doctor now, but I don't have the same kind of relationship.

1205
01:32:12,030 --> 01:32:15,650
And you know, I don't think it's as fun being a doctor now as it used to be.

1206
01:32:15,930 --> 01:32:17,870
You've got to fight with your insurance company.

1207
01:32:18,270 --> 01:32:19,690
It's just not the same universe.

1208
01:32:20,730 --> 01:32:21,710
I wish it was.

1209
01:32:23,190 --> 01:32:25,650
I just don't think this is the only factor going on.

1210
01:32:26,410 --> 01:32:30,410
I don't know if anyone said it was the only factor, but it is a factor.

1211
01:32:31,310 --> 01:32:32,350
And I don't think we can do that.

1212
01:32:32,550 --> 01:32:37,530
And we can do something about it, Ms. Roeley, and I don't think this bill is what we do

1213
01:32:37,530 --> 01:32:37,950
about it.

1214
01:32:37,970 --> 01:32:40,470
I think that Mr. Rosenfeld has hit the nail on the head.

1215
01:32:40,970 --> 01:32:44,870
We need to, you know, if it quacks like a duck, you know, we've got an insurance

1216
01:32:44,870 --> 01:32:45,510
problem.

1217
01:32:46,090 --> 01:32:47,290
Insurance rates are high.

1218
01:32:47,290 --> 01:32:48,510
It's an insurance problem.

1219
01:32:49,450 --> 01:32:50,130
Yes, Davis?

1220
01:32:50,850 --> 01:32:51,810
Thank you, Mr. Chairman.

1221
01:32:52,010 --> 01:32:55,070
I wanted to ask a question relative to our bill

1222
01:32:55,070 --> 01:32:59,350
and what's happening in California because last term,

1223
01:32:59,610 --> 01:33:02,750
the gentleman from California talked about what we needed

1224
01:33:02,750 --> 01:33:05,830
to implement to make sure that we get the right thing

1225
01:33:05,830 --> 01:33:08,290
to bring down insurance rates.

1226
01:33:08,530 --> 01:33:11,190
And then as I see your charge today, I'm wondering,

1227
01:33:11,430 --> 01:33:15,190
tell me what this bill does as it relates to insurance

1228
01:33:15,190 --> 01:33:22,230
and how it does it indicate or is it the same as the one micro that we passed or the components

1229
01:33:22,230 --> 01:33:27,110
left in or out that should be, I mean tell me how does it relate to this micro field

1230
01:33:27,110 --> 01:33:28,710
that we're talking about.

1231
01:33:28,790 --> 01:33:34,710
First let me apologize and say I've not been able to read it fully but the outline of

1232
01:33:34,710 --> 01:33:41,670
it as I read it quickly this morning is the micro approach transposed in Texas statutory

1233
01:33:41,670 --> 01:33:42,210
form.

1234
01:33:42,210 --> 01:33:47,610
Are there any elements in your, and as I heard your discussion earlier, it would appear

1235
01:33:47,610 --> 01:33:52,170
to their elements that should have been included or we ought to have a supplement or whatever

1236
01:33:52,170 --> 01:33:54,310
because it's your confusion.

1237
01:33:54,510 --> 01:33:58,070
I think you're saying that micro was not the only thing in place as it relates to

1238
01:33:58,070 --> 01:33:59,670
having insurance requirements.

1239
01:33:59,910 --> 01:34:00,230
Is that correct?

1240
01:34:00,470 --> 01:34:02,950
Well, my message is this.

1241
01:34:03,470 --> 01:34:10,470
You should disengage the issue of insurance premium control from the issue of restricting

1242
01:34:10,470 --> 01:34:15,550
the rights of innocent victims of medical negligence because there is, it never has been

1243
01:34:15,550 --> 01:34:20,050
and is no correlation and the insurers have now admitted in congressional testimony that

1244
01:34:20,050 --> 01:34:25,110
I appeared at last week that they will not agree to a rollback of premiums even if MICRA

1245
01:34:25,110 --> 01:34:27,690
is enacted in any state or federally.

1246
01:34:30,550 --> 01:34:35,490
So the second part of my testimony and the part that I gave short shrift to today

1247
01:34:35,490 --> 01:34:42,750
is the fact that dollars aside, what Micra has done in California in combination with

1248
01:34:42,750 --> 01:34:48,350
HMO, commercial driven medicine, is restrict the rights of innocent victims of malpractice

1249
01:34:48,350 --> 01:34:50,250
to even get in the courthouse door.

1250
01:34:50,790 --> 01:34:54,150
And so if you were to see me, well Harvey, are you saying that what we really should

1251
01:34:54,150 --> 01:34:58,510
do is put caps on and then stringent regulation of rates?

1252
01:34:59,170 --> 01:35:00,690
I wouldn't endorse that.

1253
01:35:00,690 --> 01:35:05,770
If you want to lower premiums, you've got to regulate rates, but you don't need CAPS

1254
01:35:05,770 --> 01:35:06,250
to do that.

1255
01:35:06,350 --> 01:35:10,650
As we proved in California with auto and homeowner and business liability insurance,

1256
01:35:11,050 --> 01:35:15,750
where there had been no real significant across-the-board tort reform, no CAPS,

1257
01:35:16,050 --> 01:35:23,050
and we rung out $1.2 billion in refunds from those property casualty insurers.

1258
01:35:24,210 --> 01:35:29,670
Next question I have, when it comes to having health care be affordable and accessible,

1259
01:35:29,670 --> 01:35:33,970
Well, we talk about doing it in a manner that doctors will be able to deliver the kind

1260
01:35:33,970 --> 01:35:35,710
of health care we want to see delivered.

1261
01:35:36,350 --> 01:35:38,410
How does this bill impact that in your mind?

1262
01:35:38,870 --> 01:35:44,030
Well, I think that's a very disingenuous statistic that has been paraded before lawmakers

1263
01:35:44,030 --> 01:35:46,010
and policy makers around the country.

1264
01:35:46,270 --> 01:35:53,110
At best, medical malpractice insurance premiums and payouts for losses are under 1 percent,

1265
01:35:53,250 --> 01:35:56,850
usually one half of 1 percent of health care expenditures.

1266
01:35:56,850 --> 01:36:05,410
And I think you might be able to get farther by capping physician salaries at 250,000 a year in terms of saving the health care system.

1267
01:36:05,850 --> 01:36:08,850
But I don't think you're going to make much savings there either.

1268
01:36:09,210 --> 01:36:16,730
The problem with our national health care system and its growing rapidly rising costs has nothing to do with medical malpractice losses.

1269
01:36:16,950 --> 01:36:24,310
There's just an insignificant fraction of the total health care expenditures in Texas or in any state in the nation.

1270
01:36:28,350 --> 01:36:32,330
Mr. Rosenfield, sorry to go back to this graph over there, but you don't need to get

1271
01:36:32,330 --> 01:36:32,470
it.

1272
01:36:32,990 --> 01:36:37,370
On the Y-axis there, it talks about the California premiums earned.

1273
01:36:37,770 --> 01:36:37,910
Yes.

1274
01:36:38,210 --> 01:36:39,530
Is that total premiums collected?

1275
01:36:40,030 --> 01:36:40,210
Yes.

1276
01:36:40,630 --> 01:36:44,650
Does that control for inflation or increase in number of population?

1277
01:36:45,030 --> 01:36:52,190
We could have done that, and we have done that, but if I were to do that, people

1278
01:36:52,190 --> 01:36:55,810
would say, well, Harvey, where did you get that rate of inflation factor?

1279
01:36:55,970 --> 01:36:57,430
I just wanted to present the straight dollars.

1280
01:36:57,830 --> 01:37:04,090
If you look at Prop 103 savings with rate of inflation for physicians, it goes up to 30.7%.

1281
01:37:04,430 --> 01:37:05,830
That's in the testimony I've given you.

1282
01:37:06,430 --> 01:37:14,270
So the increase from 250 million to a little over 650 million over those 25 years, how

1283
01:37:14,890 --> 01:37:18,290
much did the population increase or how much did the number of doctors paying liability

1284
01:37:18,290 --> 01:37:19,970
insurance increase over those years?

1285
01:37:19,970 --> 01:37:24,810
I really could not tell you, I cannot tell you, I mean, I'm sorry, I can get that information

1286
01:37:24,810 --> 01:37:28,290
for you but I just don't have it off the top of my head and I'd be quite happy to get it.

1287
01:37:28,290 --> 01:37:30,810
I think it would help, Phil and I have been sorry, I think it would help not only before

1288
01:37:30,810 --> 01:37:35,590
76 but also to see control for population, number of doctors, how that's increased.

1289
01:37:36,230 --> 01:37:36,390
Sure.

1290
01:37:36,890 --> 01:37:37,430
Thank you.

1291
01:37:39,580 --> 01:37:41,780
I haven't, oh, excuse me, go ahead.

1292
01:37:43,780 --> 01:37:46,460
Last week when doctor, this is for Mr, is it Rosenfield?

1293
01:37:46,660 --> 01:37:47,260
Rosenfield, yes.

1294
01:37:47,840 --> 01:37:49,500
Let's look when Dr. Anderson was here.

1295
01:37:50,880 --> 01:37:54,100
He and Representative Island had a discussion about frequency and severity.

1296
01:37:54,620 --> 01:38:03,580
And as I understood, Dr. Anderson's testimony, he was saying that the deep loving-off microseffect

1297
01:38:03,580 --> 01:38:08,040
was due to, was on severity, not on frequency.

1298
01:38:08,380 --> 01:38:12,360
And yet, because I remember he had charged showing that the frequency had not changed.

1299
01:38:12,820 --> 01:38:18,000
And yet, I think what I've heard you say a couple of times today is that it's very difficult

1300
01:38:18,000 --> 01:38:21,960
to find it possible to bring a MedMail case to court.

1301
01:38:22,880 --> 01:38:26,700
I don't understand the contradiction between what Dr. Anderson is saying.

1302
01:38:27,280 --> 01:38:29,800
Frequency did not change as a result of my question.

1303
01:38:30,880 --> 01:38:34,820
I like to see Dr. Anderson's data, I like to have an independent analysis of it.

1304
01:38:35,020 --> 01:38:38,560
But let me say this, let me rephrase your question another way.

1305
01:38:38,560 --> 01:38:42,940
Like people say, what proof do you have that people can't get lawyers?

1306
01:38:43,780 --> 01:38:48,180
And that's a problem because I can only give you the anecdotal proof as one of the state's

1307
01:38:48,180 --> 01:38:49,280
largest consumer groups.

1308
01:38:49,380 --> 01:38:53,940
I get 10 calls a week from people, some on their deathbeds asking me to find a lawyer

1309
01:38:53,940 --> 01:38:54,860
for their next to kin.

1310
01:38:55,340 --> 01:38:58,920
I can, however, give you this and I think it should be persuasive to the committee.

1311
01:39:00,340 --> 01:39:04,220
The insurance industry's lead defense lawyer, the one that the insurance industry

1312
01:39:04,220 --> 01:39:09,400
and the doctors and truers companies hired to defend medical malpractice cases was summoned

1313
01:39:09,400 --> 01:39:15,680
to Congress in the early 90s to discuss MICRA and I guess he felt that his professional

1314
01:39:15,680 --> 01:39:20,940
ethics and obligation to the system of law in our country transcended his own self interest

1315
01:39:20,940 --> 01:39:25,980
and he testified and I can get you the testimony that he felt that many legitimate victims

1316
01:39:25,980 --> 01:39:30,780
of medical malpractice could not get into the court could not find a lawyer because

1317
01:39:30,780 --> 01:39:31,440
of MICRA.

1318
01:39:31,440 --> 01:39:36,880
And for that honesty, he was fired by every insurance company that had retained him.

1319
01:39:36,940 --> 01:39:38,060
And he was the best in the state.

1320
01:39:38,200 --> 01:39:40,120
And I'd be glad to provide that testimony to you.

1321
01:39:41,120 --> 01:39:46,560
Patrick, I don't remember if Dr. Anderson's statistics controlled

1322
01:39:46,560 --> 01:39:48,220
for population increase or not.

1323
01:39:53,290 --> 01:39:53,950
I don't remember either.

1324
01:39:54,750 --> 01:39:55,450
I have

1325
01:39:59,160 --> 01:39:59,660
one quick question.

1326
01:40:00,760 --> 01:40:03,080
I understand that you're not in favor of capping attorney's fees.

1327
01:40:04,280 --> 01:40:04,620
No.

1328
01:40:05,300 --> 01:40:07,900
And I mean, some of them are in favor of capping insurance premiums.

1329
01:40:08,400 --> 01:40:08,880
Yes.

1330
01:40:09,220 --> 01:40:09,460
Okay.

1331
01:40:09,560 --> 01:40:13,440
And I'll tell you why. May I tell you why? May I respond?

1332
01:40:13,700 --> 01:40:13,940
Sure.

1333
01:40:15,200 --> 01:40:23,460
The state requires people to buy insurance for automobiles. I'd rather have two reasonable levels.

1334
01:40:23,780 --> 01:40:28,300
I'd probably be willing to cap fees at 40% for attorneys.

1335
01:40:28,520 --> 01:40:38,820
But I want to have, when you're required by law to purchase insurance, I believe that the state should guarantee that you're protected against unfair or excessive rates.

1336
01:40:38,820 --> 01:40:43,520
for whatever it may be and that's what regulation does I think when it comes to

1337
01:40:43,520 --> 01:40:48,500
unless we had unfortunately don't have enough lawyers in this country to I knew

1338
01:40:48,500 --> 01:40:54,420
you guys to breathe hard on that until we have until we have more competition

1339
01:40:54,420 --> 01:40:58,660
so that more good lawyers are available to take cases I don't want to

1340
01:40:58,660 --> 01:40:59,300
constrain that.

1341
01:41:05,260 --> 01:41:14,940
Wait, I want to recognize a good lawyer, Mr. King, who is going to ask a question, please.

1342
01:41:15,540 --> 01:41:17,700
Good lawyer or bad account. I just want to make sure I understand.

1343
01:41:19,960 --> 01:41:21,560
And I'm really not trying to pick on you.

1344
01:41:22,080 --> 01:41:25,700
But if I understand, just because Pat said this a lot better than I did,

1345
01:41:27,700 --> 01:41:32,660
that chart is reflective only of dollars collected in premiums. Yes.

1346
01:41:32,660 --> 01:41:40,940
It isn't indexed by the number of physicians taking out policies or by the increase in

1347
01:41:40,940 --> 01:41:42,220
no factor like that.

1348
01:41:42,560 --> 01:41:48,960
So the spikes could just as well be indicative of more physicians coming into California and

1349
01:41:48,960 --> 01:41:50,820
when it goes down, the physicians leaving.

1350
01:41:51,060 --> 01:41:51,280
I mean...

1351
01:41:51,280 --> 01:41:55,020
Well, could there have been a 190% increase in the number of physicians?

1352
01:41:55,460 --> 01:41:56,500
I mean, I don't know.

1353
01:41:56,720 --> 01:41:57,500
That's what I'm saying.

1354
01:41:57,640 --> 01:41:58,020
You know what?

1355
01:41:58,060 --> 01:42:01,420
I think we can find that data out, but I'm quite sure, Representative, that

1356
01:42:01,420 --> 01:42:02,080
that wasn't the issue.

1357
01:42:02,080 --> 01:42:07,040
So here's one of the problems that we're running into in this, and I guess this goes

1358
01:42:07,040 --> 01:42:12,700
into the heart of all our hearings we're going to be having, is that

1359
01:42:16,500 --> 01:42:18,540
it's very important

1360
01:42:18,540 --> 01:42:25,780
that we see, I'm all for doing a cap, but I want to make sure that when we do a cap

1361
01:42:25,780 --> 01:42:28,800
that it creates the effect that we want it to.

1362
01:42:28,940 --> 01:42:33,280
What we're really trying to do, as I understand it, is we want to, from a policy standpoint,

1363
01:42:33,280 --> 01:42:37,220
is we want to see medical malpractice,

1364
01:42:37,440 --> 01:42:41,220
insurance rates come down so that health care,

1365
01:42:41,340 --> 01:42:43,280
so that the business of health care is cheaper

1366
01:42:43,280 --> 01:42:45,020
for our physicians and hospitals,

1367
01:42:45,320 --> 01:42:47,460
so that it will be cheaper for the patients,

1368
01:42:47,460 --> 01:42:50,860
so that it has a good impact for the citizens of Texas.

1369
01:42:51,060 --> 01:42:52,440
I mean, that's what we're really trying to do.

1370
01:42:53,100 --> 01:42:55,360
And so whatever we do, my big fear is

1371
01:42:55,360 --> 01:42:57,600
that we're going to pass all this stuff

1372
01:42:58,440 --> 01:43:00,080
and do these things.

1373
01:43:00,280 --> 01:43:01,580
And then two years from now,

1374
01:43:01,580 --> 01:43:05,700
when I got to face my constituents again, they're going to say, we don't really feel

1375
01:43:05,700 --> 01:43:09,340
anything in our pocketbook is the difference on this.

1376
01:43:09,420 --> 01:43:10,440
I'm still charging the same.

1377
01:43:11,000 --> 01:43:15,120
It's just like with our public schools when we come in, Mr. Chairman, and we send money

1378
01:43:15,120 --> 01:43:23,020
to the local school districts to assist in their financial crisis, and then they still

1379
01:43:23,020 --> 01:43:26,200
raise taxes, and they say, well, the state didn't do enough to help it.

1380
01:43:26,200 --> 01:43:36,520
And common sense tells me that if we reduce the amount that is going into judgment, that that's going to have a positive impact on what the insurance rates are.

1381
01:43:37,060 --> 01:43:43,000
But we don't really get any hard information or hard data on that that really shows a correlation.

1382
01:43:43,840 --> 01:43:47,260
And charts like this, and again, please forgive me, I'm really not trying to pick on you.

1383
01:43:47,260 --> 01:43:52,860
But when you bring in a chart that's not indexed, all you're only showing is the dollar increase

1384
01:43:52,860 --> 01:43:54,760
from 1976 to 2001.

1385
01:43:55,100 --> 01:43:57,920
My cars cost a lot more from 1976 to 2001.

1386
01:44:01,060 --> 01:44:08,160
But you've got to compare, as you said apples to apples, you've got to have some base to

1387
01:44:08,160 --> 01:44:08,780
deal with that problem.

1388
01:44:09,020 --> 01:44:16,080
So I really have trouble giving credibility to your testimony in that regard.

1389
01:44:16,080 --> 01:44:21,300
What I want to find is someone that can can show me definitively that if we do

1390
01:44:21,300 --> 01:44:24,760
this that insurance rates are going to come down and that's what I'm really

1391
01:44:24,760 --> 01:44:28,940
looking for as a panel member. Well the insurers themselves will tell you when

1392
01:44:28,940 --> 01:44:31,620
you bring them up just ask them point blank. We would agree to a statutory

1393
01:44:31,620 --> 01:44:35,820
rate reduction when we do what you're asking us to do and they'll say no.

1394
01:44:36,340 --> 01:44:39,340
At least that's what they're saying. Let me not be presumptuous. That's what

1395
01:44:39,340 --> 01:44:42,500
they said in Congress. They said Florida, New Jersey, and Pennsylvania all

1396
01:44:42,500 --> 01:44:45,100
that week when I was there. But of course they're going to say that if

1397
01:44:45,100 --> 01:44:47,540
if they're paying out 50% more than they're bringing in.

1398
01:44:47,620 --> 01:44:52,300
No, the question was, if we pass micro in our state or federally,

1399
01:44:52,440 --> 01:44:54,900
will you agree to a statutory rollback?

1400
01:44:55,060 --> 01:44:55,900
And the answer was no.

1401
01:44:56,420 --> 01:44:58,900
I mean, I can get you the data that you're requesting.

1402
01:44:59,420 --> 01:44:59,960
And I firmly agree with that.

1403
01:45:00,000 --> 01:45:04,600
If you believe at the end of that, taking you, as you described it, from a policy viewpoint,

1404
01:45:05,080 --> 01:45:09,620
you will see the same results. But I guess the response should be, when you are discussing

1405
01:45:09,620 --> 01:45:14,820
these arbitrary restrictions on people's right to go to court, first do no harm. Why not

1406
01:45:14,820 --> 01:45:20,040
try the insurance regulation first and see what that does? And then, if that doesn't work,

1407
01:45:20,340 --> 01:45:24,640
you can definitively dismiss the evidence I've presented, and then you can say, well,

1408
01:45:24,680 --> 01:45:29,980
the only thing left to do is cut off people's right to sue. And of course, then you'll

1409
01:45:29,980 --> 01:45:33,980
In the same sense that if I cut off your leg, you'd lose 20 pounds, but would you consider

1410
01:45:33,980 --> 01:45:34,540
that a diet?

1411
01:45:35,300 --> 01:45:35,480
No.

1412
01:45:36,260 --> 01:45:36,440
Right?

1413
01:45:36,640 --> 01:45:38,580
I mean, yeah, you could lose weight that way.

1414
01:45:38,800 --> 01:45:43,340
I mean, there's a qualitative judgment about quality of life and the quality of justice

1415
01:45:43,340 --> 01:45:43,900
in our country.

1416
01:45:44,020 --> 01:45:50,700
But why not try insurance reform first, first do no harm, and then, and then try

1417
01:45:50,700 --> 01:45:51,060
this?

1418
01:45:51,700 --> 01:45:52,140
Thank you.

1419
01:45:52,280 --> 01:45:53,520
Thanks for coming all the way out to testify.

1420
01:45:53,940 --> 01:45:54,340
Thank you.

1421
01:45:55,280 --> 01:45:56,060
All right.

1422
01:46:00,040 --> 01:46:03,800
I do want to get to our panel of hard-to-find lawyers

1423
01:46:09,180 --> 01:46:15,120
who are chomping at the bit to get

1424
01:46:15,120 --> 01:46:16,760
up here, but that's okay.

1425
01:46:16,920 --> 01:46:17,680
Ms. Wille, yes?

1426
01:46:17,740 --> 01:46:20,040
Mr. President, two questions.

1427
01:46:20,280 --> 01:46:25,100
How many insurance companies are now writing medical malpractice in California?

1428
01:46:26,980 --> 01:46:28,060
You know, I'm sorry.

1429
01:46:28,420 --> 01:46:30,120
That's another bit of information I'll get out.

1430
01:46:30,120 --> 01:46:31,620
I don't have it off the top of my head.

1431
01:46:31,680 --> 01:46:34,340
There is a chart of the numbers that were the main ones

1432
01:46:34,340 --> 01:46:39,000
that were writing in 91, but I don't know how many exactly.

1433
01:46:39,180 --> 01:46:39,900
I have no idea.

1434
01:46:40,560 --> 01:46:41,300
I really don't.

1435
01:46:41,660 --> 01:46:42,060
I don't, I'm sorry.

1436
01:46:42,520 --> 01:46:44,800
And I want to clarify, you were with the Foundation

1437
01:46:44,800 --> 01:46:46,520
for Taxpayers and Consumers, right?

1438
01:46:46,680 --> 01:46:49,140
Is this a national group or is it strictly a California group?

1439
01:46:49,260 --> 01:46:52,220
Lately, as in this situation with HMO reform

1440
01:46:52,220 --> 01:46:55,100
and energy deregulation, we've been doing things all

1441
01:46:55,100 --> 01:46:57,220
over the country, but it's, most of our,

1442
01:46:57,280 --> 01:46:59,320
most of our work is focused in California.

1443
01:46:59,320 --> 01:47:03,980
Do other groups pay your way to get here or is the Foundation

1444
01:47:03,980 --> 01:47:05,880
for Taxpayer and Consumer Rights paying your way?

1445
01:47:06,200 --> 01:47:08,300
Well, yes, we pay my way all the way.

1446
01:47:08,460 --> 01:47:11,280
I was going to ask if the committee would help cover the expenses.

1447
01:47:13,270 --> 01:47:14,110
I don't think so.

1448
01:47:15,010 --> 01:47:16,750
They don't even cover my expenses.

1449
01:47:18,430 --> 01:47:22,010
But so you're not, you weren't paid by another group that you come.

1450
01:47:22,330 --> 01:47:22,550
No.

1451
01:47:22,810 --> 01:47:23,210
Thank you.

1452
01:47:24,490 --> 01:47:24,950
Quickly.

1453
01:47:25,750 --> 01:47:26,530
Just sure, Mr. Hart.

1454
01:47:26,530 --> 01:47:31,970
This, Mr. Chairman, the 85% statistic came out during the testimony and I'm going to

1455
01:47:31,970 --> 01:47:40,090
just put out another statistic request for this panel or anyone here, that 85% no recovery

1456
01:47:40,090 --> 01:47:43,670
rate applies to all the letters, et cetera.

1457
01:47:44,130 --> 01:47:48,450
And I'm wondering, does anybody have the statistic for the number of suits that result

1458
01:47:48,450 --> 01:47:49,390
in no recovery?

1459
01:47:50,070 --> 01:47:50,450
Thank you.

1460
01:48:09,410 --> 01:48:15,210
Maybe you can run and go get him or call and then when we have an opportunity we'll call

1461
01:48:15,210 --> 01:48:16,550
you up and let you testify to that.

1462
01:48:16,850 --> 01:48:18,270
And thank you for being here.

1463
01:48:18,870 --> 01:48:19,430
All right.

1464
01:48:19,670 --> 01:48:20,310
Thank you, panelists.

1465
01:48:21,110 --> 01:48:22,590
Thank you, Mr. Chairman, committee.

1466
01:48:27,690 --> 01:48:35,730
Chair now recognizes Hardley Hampton to speak against HB3 and HVR3.

1467
01:48:36,570 --> 01:48:47,730
Richard Mithoff to speak against HB3 and HDR3 and Paula Sweeney to speak against HB3 and HDR3.

1468
01:48:48,830 --> 01:48:51,310
Y'all weren't too hard to find, right up there.

1469
01:48:53,190 --> 01:48:54,650
We've been here, Mr. Chairman.

1470
01:48:54,650 --> 01:48:55,550
All

1471
01:49:06,010 --> 01:49:14,330
right, if y'all can manage to lay out your collective presentation within 15 minutes,

1472
01:49:15,010 --> 01:49:23,230
as you can see, we have great latitude and questions, so please proceed.

1473
01:49:23,410 --> 01:49:28,590
Whoever goes first, identify yourself and state which group you represent.

1474
01:49:29,590 --> 01:49:31,470
Ms. Chairman, I'm Paula Sweeney.

1475
01:49:31,550 --> 01:49:31,970
I'm a lawyer.

1476
01:49:32,190 --> 01:49:33,610
I practice in Dallas, Texas.

1477
01:49:33,610 --> 01:49:39,050
us, have practiced there for 22 years with the firm of Howie and Sweeney, done nothing

1478
01:49:39,050 --> 01:49:43,270
but medical malpractice litigation in that time and always on the plaintiff's side.

1479
01:49:44,410 --> 01:49:46,470
Are you here on behalf of the Texas Trial Lawyers Association?

1480
01:49:46,590 --> 01:49:48,430
I am and against the bill.

1481
01:49:48,730 --> 01:49:49,250
Thank you, ma'am.

1482
01:49:50,970 --> 01:49:58,430
To start with the bigger picture and we've sort of divided up our comments, this bill

1483
01:49:58,430 --> 01:50:02,470
does not address the problems at which it is aimed.

1484
01:50:02,470 --> 01:50:12,360
What this bill does instead is to the most seriously injured, to the killed, to the maimed,

1485
01:50:12,360 --> 01:50:16,260
to the brain damaged, to the paralyzed, it caps their recovery.

1486
01:50:17,260 --> 01:50:21,240
The non-frivolous cases are capped by this bill.

1487
01:50:21,940 --> 01:50:30,020
The cap in this bill of $250,000 on non-economic loss caps only the non-frivolous cases.

1488
01:50:30,020 --> 01:50:36,340
cases, only the cases in which a jury in this state has decided that the injury is substantial,

1489
01:50:36,780 --> 01:50:42,940
that the injury is life affecting or has caused death, that the malpractice and the negligence

1490
01:50:42,940 --> 01:50:49,820
of the wrongdoers has caused a dramatic injury. It has a $250,000 cap on intangibles

1491
01:50:49,820 --> 01:50:55,220
does not impact frivolous cases. So we have to sort out from the beginning the apples

1492
01:50:55,220 --> 01:51:01,240
in the oranges, and the issue of the caps is a severity issue, not a frivolous frequency

1493
01:51:01,240 --> 01:51:01,900
issue.

1494
01:51:02,240 --> 01:51:04,700
There are two completely separate concepts.

1495
01:51:05,420 --> 01:51:11,960
The caps, as they are written in this bill, are anti-family, they are anti-woman, they

1496
01:51:11,960 --> 01:51:14,640
are anti-child, and they are anti-the elderly.

1497
01:51:15,440 --> 01:51:22,200
They are against and anti- and disproportionately affect the disabled, the economically disadvantaged,

1498
01:51:22,200 --> 01:51:30,160
And those who have traditionally been held into a position of lesser economic opportunity in our state.

1499
01:51:30,500 --> 01:51:32,060
Let me give you some examples.

1500
01:51:32,240 --> 01:51:39,620
For example, to call the recovery of the elderly gentleman that was described earlier that was scalded to death.

1501
01:51:40,340 --> 01:51:41,440
A lawsuit lottery.

1502
01:51:43,080 --> 01:51:48,200
We have to assume that the price of his ticket was a willingness to be scalded to death.

1503
01:51:48,540 --> 01:51:50,060
That's his lottery ticket.

1504
01:51:50,060 --> 01:51:56,480
To call recovery for the death of a child in excess of $250,000,

1505
01:51:57,020 --> 01:52:01,600
a lottery is to assume that parents have purchased a lottery ticket

1506
01:52:01,600 --> 01:52:03,700
at the price of the death of their child.

1507
01:52:04,040 --> 01:52:06,080
That is not Texas family values.

1508
01:52:06,840 --> 01:52:11,360
To say to a family whose mother stays home, a homemaker,

1509
01:52:12,080 --> 01:52:15,760
a caregiver, a home schooler perhaps, a soccer mom,

1510
01:52:16,440 --> 01:52:21,460
You are worth less because you don't put your kids in daycare and you don't have a job.

1511
01:52:21,840 --> 01:52:23,400
You're home raising those kids.

1512
01:52:23,940 --> 01:52:30,340
To say to that family and those children whose mother is killed by a drunken doctor or a negligent doctor,

1513
01:52:30,880 --> 01:52:33,620
your mom's worth less, you're going to get a smaller verdict.

1514
01:52:34,180 --> 01:52:38,960
Her economic value is set at nothing because she doesn't have a paycheck.

1515
01:52:39,200 --> 01:52:43,080
And this bill makes paychecks and tax statements admissible to prove worth.

1516
01:52:43,080 --> 01:52:48,620
birth. She doesn't have a paycheck, we say, as a matter of policy in this bill in the state

1517
01:52:48,620 --> 01:52:53,960
of Texas that that soccer mom is worth less to her kids than the mom who puts her kids

1518
01:52:53,960 --> 01:52:58,400
in daycare and goes to work because she has a paycheck. I do not believe those are Texas

1519
01:52:58,400 --> 01:53:03,860
family values. And I don't think this bill represents Texas family values. To say to

1520
01:53:03,860 --> 01:53:08,420
a family whose child is brain damaged at birth, that child who will never walk,

1521
01:53:08,420 --> 01:53:16,740
talk, read, feed himself or herself, date, marry, have children, be independent, who will

1522
01:53:16,740 --> 01:53:21,080
be cared for by its parents for the rest of its life as it's fed through a tube in its

1523
01:53:21,080 --> 01:53:21,360
stomach.

1524
01:53:22,000 --> 01:53:27,860
That child's suffering, that was a lottery and your lottery ticket is only worth $250,000

1525
01:53:28,380 --> 01:53:33,040
for what your entire family will go through in caring for this child for the rest of

1526
01:53:33,040 --> 01:53:39,500
of her life is not Texas family values of the life of the child, the worth of the child.

1527
01:53:39,680 --> 01:53:45,300
We used to, before the Industrial Revolution, value children as little economic units.

1528
01:53:45,620 --> 01:53:46,460
They were farmhands.

1529
01:53:46,860 --> 01:53:47,660
They were factory workers.

1530
01:53:48,200 --> 01:53:49,560
We know they work six days a week.

1531
01:53:50,000 --> 01:53:54,100
I just recently read that the reason Sunday schools were started were to give children

1532
01:53:54,100 --> 01:53:57,660
some sort of education and break on that one day when they weren't in the factories

1533
01:53:57,660 --> 01:53:58,080
working.

1534
01:53:58,080 --> 01:54:03,980
and to give them some sort of values other than as little factory production units.

1535
01:54:04,880 --> 01:54:08,160
We don't believe that anymore, but this bill says that.

1536
01:54:08,300 --> 01:54:14,240
It says that if a drunken doctor kills a child, that we have set that child's worth at $250,000

1537
01:54:14,240 --> 01:54:16,980
because he or she does not produce income to the family.

1538
01:54:17,840 --> 01:54:22,720
The bill also lumps together all non-economic damages as one category.

1539
01:54:23,300 --> 01:54:26,600
And very loosely we've heard physical pain and mental anguish,

1540
01:54:26,600 --> 01:54:31,460
but the committee must focus on the common law and on its stated purpose

1541
01:54:31,460 --> 01:54:35,120
and on this committee's stated purpose to fully and justly compensate

1542
01:54:35,120 --> 01:54:39,740
for all elements of intangible damages which is not just physical pain and mental anguish.

1543
01:54:40,100 --> 01:54:44,720
For example, a child whose parent is crippled has a claim

1544
01:54:44,720 --> 01:54:46,860
for what's called loss of parental consortium.

1545
01:54:47,300 --> 01:54:52,640
Why? Because the courts and the Texas common law recognizes that parents bring something

1546
01:54:52,640 --> 01:54:58,300
to their children, such as the positive benefits flowing from the love, affection, protection,

1547
01:54:59,020 --> 01:55:04,380
emotional support, service, companionship, care, and society of that parent to that child.

1548
01:55:04,860 --> 01:55:06,400
That's lumped into this cap.

1549
01:55:07,240 --> 01:55:10,720
We have another element of damages in Texas, physical impairment.

1550
01:55:11,360 --> 01:55:17,880
That is apparently, although it has not really been discussed, but the reading of

1551
01:55:17,880 --> 01:55:22,020
the statute is and the way it's written now that physical impairment is lumped

1552
01:55:22,020 --> 01:55:22,660
into the cap.

1553
01:55:23,100 --> 01:55:25,820
Physical impairment is an entirely different category

1554
01:55:26,200 --> 01:55:27,780
than physical pain or mental anguish.

1555
01:55:27,900 --> 01:55:30,000
Physical impairment is the objective inability

1556
01:55:30,500 --> 01:55:33,160
to perform tasks that one used to perform.

1557
01:55:33,420 --> 01:55:36,500
To walk, for instance, if one loses the use of one's legs

1558
01:55:36,500 --> 01:55:37,520
due to malpractice.

1559
01:55:37,860 --> 01:55:40,360
To get oneself up off a commode.

1560
01:55:40,480 --> 01:55:44,140
To get oneself up off a bed, out of a bed and into a chair.

1561
01:55:44,680 --> 01:55:46,780
All of the things that are taken for granted

1562
01:55:46,780 --> 01:55:48,460
in our daily physical mobility,

1563
01:55:48,800 --> 01:55:49,960
that's physical impairment.

1564
01:55:49,960 --> 01:55:56,200
element. That's lumped into this category. Disfigurement is another element that is recognized,

1565
01:55:56,440 --> 01:56:02,000
the subjective loss to an individual from the disfiguring nature of their injuries.

1566
01:56:03,440 --> 01:56:08,520
A little child I represented who had had an arm crippled when he was 4 years old said

1567
01:56:08,520 --> 01:56:14,480
to his mom, I don't want my friends to see Mr. Bad Lefty. He tried to hide Mr. Lefty.

1568
01:56:14,480 --> 01:56:20,440
The scars of that child as a result of the subjective loss of his body image and his

1569
01:56:20,440 --> 01:56:25,800
disfigurement is recognized because we try to fully and fairly compensate people for

1570
01:56:25,800 --> 01:56:30,300
their injuries, and yet that is also rolled in here with physical pain and mental anguish.

1571
01:56:31,080 --> 01:56:37,600
Lastly I want to touch on briefly that mental anguish is not, again, a lawsuit lottery.

1572
01:56:38,640 --> 01:56:43,700
When mental anguish damages are scrutinized, our Supreme Court has been clear it is

1573
01:56:43,700 --> 01:56:47,300
more than just emotional pain. It is more than just inconvenience,

1574
01:56:47,400 --> 01:56:51,380
vexation or harassment. It is emotional pain, torment and

1575
01:56:51,380 --> 01:56:54,480
suffering, such as one might have when losing a child, a

1576
01:56:54,480 --> 01:56:58,580
spouse, a parent, a loved one, or a functioning body or brain.

1577
01:56:59,700 --> 01:57:03,680
It is not a random category that is not defined for the

1578
01:57:03,680 --> 01:57:07,100
jury. These same juries that we trust in Texas to sentence

1579
01:57:07,100 --> 01:57:11,280
people to life in prison and to death. For some reason, we

1580
01:57:11,280 --> 01:57:14,840
cannot trust to be the arbiters of our conscience in this regard.

1581
01:57:15,380 --> 01:57:20,460
If this bill might perhaps reach some of the goals for which it is being advanced,

1582
01:57:20,640 --> 01:57:21,660
that would be another issue.

1583
01:57:21,800 --> 01:57:23,980
And Mr. Hansen and Mr. Mithoff will touch on that.

1584
01:57:24,320 --> 01:57:25,820
But this bill does not do that.

1585
01:57:25,940 --> 01:57:30,980
Instead, what it does is it devalues the most economically vulnerable members of this,

1586
01:57:31,260 --> 01:57:32,760
of our state and of our community.

1587
01:57:32,940 --> 01:57:37,500
And if you're in a community that has been historically economically discriminated against,

1588
01:57:37,500 --> 01:57:41,780
We know women still make 60 or 70 cents on the dollar compared to men,

1589
01:57:41,880 --> 01:57:46,540
so by definition under this bill women recoveries for identical torts,

1590
01:57:46,580 --> 01:57:50,260
for identical malpractice are lower than the recoveries allowed for men.

1591
01:57:50,820 --> 01:57:55,200
I'm not of the view that that is the opinion of the people of the state of Texas.

1592
01:57:57,320 --> 01:58:01,180
Minority members of the community have historically been economically disadvantaged.

1593
01:58:01,620 --> 01:58:05,020
This bill puts a dollar value and says that's your recovery.

1594
01:58:05,600 --> 01:58:08,800
It is not full, it is not fair, it is not just compensation.

1595
01:58:10,840 --> 01:58:13,760
And I will yield the rest of the time to Mr. Hanson and Mr. Middalf.

1596
01:58:16,610 --> 01:58:21,330
Mr. Chairman, ladies and gentlemen of the committee, my name is Richard Middalf, I'm a lawyer.

1597
01:58:22,170 --> 01:58:23,590
I practice in Houston.

1598
01:58:24,930 --> 01:58:29,770
I'm here to talk about my own experience as a lawyer and also on behalf of Texas

1599
01:58:29,770 --> 01:58:31,070
Law Lawyers Association.

1600
01:58:31,790 --> 01:58:34,670
I've handled a number of different kinds of cases.

1601
01:58:35,410 --> 01:58:38,390
I've handled cases for both the plaintiff and the defendant.

1602
01:58:39,190 --> 01:58:47,250
Most of my work is for the plaintiff doing personal injury work as well as work for commercial clients.

1603
01:58:48,130 --> 01:58:55,590
And I want to talk for just a few minutes about the joint resolution and the proposed constitutional amendment.

1604
01:58:55,590 --> 01:59:05,350
I have a concern, first of all, because the purpose of the House bill, as articulated at

1605
01:59:05,350 --> 01:59:13,770
page 41 of the proposed bill, says that part of the purpose of this bill is to make certain

1606
01:59:13,770 --> 01:59:20,010
modifications to the liability laws as they relate to health care liability claims only

1607
01:59:20,010 --> 01:59:27,590
and not to extend or apply those modifications to any other area of the Texas legal system

1608
01:59:27,590 --> 01:59:28,550
or tort law.

1609
01:59:29,070 --> 01:59:34,870
And yet the proposed constitutional amendment through the joint resolution, in fact, would

1610
01:59:34,870 --> 01:59:41,810
extend the caps and the right to cap damages far beyond the area of medical malpractice.

1611
01:59:41,990 --> 01:59:48,790
The proposed joint resolution proposes to authorize the legislature to enact caps

1612
01:59:48,790 --> 01:59:52,250
on all non-economic damages in all cases.

1613
01:59:52,630 --> 01:59:54,870
So you would be including under that authorization

1614
01:59:54,870 --> 01:59:59,290
defective products such as Firestone tires, such as...

1615
02:00:00,000 --> 02:00:06,720
The Dalton Shield IUD. You would be including catastrophic automobile accidents caused by drunk drivers.

1616
02:00:07,360 --> 02:00:13,720
You would even be including commercial cases and any non-economic damages such as punitive damages that may arise

1617
02:00:13,720 --> 02:00:18,560
out of a stock fraud case, a case against Enron, a case against WorldCom.

1618
02:00:19,260 --> 02:00:24,900
So my first concern about the proposed constitutional amendment is that it extends far beyond

1619
02:00:24,900 --> 02:00:27,760
the original contemplated purpose of the House bill.

1620
02:00:27,760 --> 02:00:34,040
My second concern is that it contemplates what amounts to a one-size-fits-all cap.

1621
02:00:35,640 --> 02:00:41,580
And I would respectfully submit that a one-size-fits-all cap really sends the wrong message.

1622
02:00:42,780 --> 02:00:49,140
It tends to reward the non-serious injury and it tends to trivialize the serious injury.

1623
02:00:49,740 --> 02:00:56,440
It says that a broken arm or a sprained back can be worth as much as death or dismemberment

1624
02:00:56,440 --> 02:01:02,900
or paralysis, or brain injury, or sexual misconduct, or child abuse.

1625
02:01:06,040 --> 02:01:10,380
It penalizes those who do not have a high income loss.

1626
02:01:10,840 --> 02:01:14,780
It penalizes those who are not high wage earners.

1627
02:01:15,900 --> 02:01:20,460
It says to the families who lose a wife and a mother saying

1628
02:01:24,010 --> 02:01:25,430
at home and taking care of the children,

1629
02:01:25,610 --> 02:01:29,150
your loss is of little consequence.

1630
02:01:29,150 --> 02:01:31,730
We have safeguards built into our wall.

1631
02:01:32,350 --> 02:01:35,430
We have a judge who passes on every jury verdict.

1632
02:01:35,610 --> 02:01:38,550
We have a court of appeals who hears those appeals.

1633
02:01:38,770 --> 02:01:44,350
We have a Supreme Court that makes final determination about jury damages.

1634
02:01:45,030 --> 02:01:48,810
We have a Supreme Court that is not hesitated to reduce damages

1635
02:01:49,410 --> 02:01:52,470
when the court concluded that the damages were excessive.

1636
02:01:55,670 --> 02:02:04,900
This cap and this authority to cap damages penalizes real clients with real cases.

1637
02:02:05,580 --> 02:02:12,960
It says to the family of Margo Squickman Johnson, who I represented a few years ago in Lubbock, Texas,

1638
02:02:13,280 --> 02:02:21,680
who was killed together with her unborn fetus during childbirth by a drug-addicted anesthesiologist.

1639
02:02:22,960 --> 02:02:29,000
Your loss is of little consequence, and it says to that same hospital, the South Park

1640
02:02:29,000 --> 02:02:35,060
Hospital in Lovak, this doctor's conduct is of little consequence because that hospital

1641
02:02:35,060 --> 02:02:39,760
the evidence showed was aware and was on notice of that doctor's drug addiction and

1642
02:02:39,760 --> 02:02:40,920
nothing was done about it.

1643
02:02:41,760 --> 02:02:48,540
In short, this constitutional amendment in my review of it respectfully goes too far

1644
02:02:48,540 --> 02:02:52,760
and I would respectfully urge its defeat and the bill's defeat. Thank you.

1645
02:02:53,880 --> 02:02:58,100
Mr. Chairman, my name

1646
02:03:00,470 --> 02:03:02,910
is Hartley Hampton. I apologize for breaking your microphone.

1647
02:03:04,010 --> 02:03:05,590
I represent the Texas...

1648
02:03:05,590 --> 02:03:07,230
It's partly your microphone too.

1649
02:03:07,550 --> 02:03:09,690
I represent the Texas trial lawyers.

1650
02:03:09,910 --> 02:03:13,110
Can you tell me how much time I have left at one minute?

1651
02:03:13,770 --> 02:03:17,150
Well, I had it broken down to 20 seconds per page.

1652
02:03:17,150 --> 02:03:20,550
I guess that's been limited.

1653
02:03:21,290 --> 02:03:23,810
Mr. Chairman, I want to solve this problem.

1654
02:03:24,870 --> 02:03:28,610
I want the legislature to solve the problem for the doctors.

1655
02:03:28,770 --> 02:03:30,190
The doctors are being ripped off.

1656
02:03:30,550 --> 02:03:32,870
They're being squeezed by reimbursements.

1657
02:03:33,010 --> 02:03:35,630
They're being charged scandalously high rates.

1658
02:03:36,350 --> 02:03:39,430
I want the legislature to solve my homeowner's rates.

1659
02:03:39,930 --> 02:03:43,170
I want the legislature to solve my auto insurance rates.

1660
02:03:43,930 --> 02:03:49,450
The only way that you can solve this problem, the only way that you can help these doctors

1661
02:03:49,450 --> 02:03:53,270
is to really know what the cause of the problem is.

1662
02:03:53,950 --> 02:03:59,110
Now I have heard the insurance commissioner testify every time that he is testified in

1663
02:03:59,110 --> 02:04:05,250
public about this issue and I have analyzed his data as carefully as I can and I've had

1664
02:04:05,250 --> 02:04:07,490
a certified public account and helped me do it.

1665
02:04:07,490 --> 02:04:14,690
His data does not answer the question of what is causing this problem, if I might explain.

1666
02:04:15,610 --> 02:04:24,530
He tells you that the problem is driven by two things, that the rate increases are driven by frequency and by severity.

1667
02:04:25,390 --> 02:04:36,090
And he's given you charts and he's testified that the frequency increase is what he called a quote relatively modest 4% per year.

1668
02:04:36,090 --> 02:04:43,210
If you look at his chart actually, the statewide frequency rate is decreasing slightly over the last couple of years.

1669
02:04:45,030 --> 02:04:48,770
Looking at, he uses two measures for severity.

1670
02:04:49,190 --> 02:04:56,770
One is average cost for doctor, which he says is increasing at 10.8% per year.

1671
02:04:57,510 --> 02:05:00,150
10.8% per year.

1672
02:05:00,150 --> 02:05:09,790
He says that the average indemnity plus the fence cost per case, per closed case is increasing

1673
02:05:09,790 --> 02:05:12,090
at less than 7% per year.

1674
02:05:12,990 --> 02:05:16,730
Now, I know you all have heard a lot of numbers, but this is very important.

1675
02:05:17,270 --> 02:05:24,450
Frequency is increasing at 4%, severity is increasing at somewhere between 7 and 11%.

1676
02:05:25,670 --> 02:05:32,350
TMLT has raised their rates during the same period of time, 140% over the last couple of years,

1677
02:05:33,110 --> 02:05:35,410
not over the same period of time, over the last couple of years.

1678
02:05:36,050 --> 02:05:41,230
The doctor's company has raised their rates 100% over the last 20 months.

1679
02:05:42,170 --> 02:05:48,830
Now, a frequency increase of 4% and a severity increase of 7% or 11%

1680
02:05:48,830 --> 02:05:51,330
or if you even add all of these numbers together,

1681
02:05:51,330 --> 02:05:56,410
That does not explain why these rates are going up.

1682
02:05:56,830 --> 02:05:59,470
You do not have sufficient data.

1683
02:06:00,610 --> 02:06:03,650
The insurance commissioner has given you data

1684
02:06:03,650 --> 02:06:07,330
that shows the breakdown of the investments

1685
02:06:07,330 --> 02:06:08,890
of these insurance companies.

1686
02:06:09,430 --> 02:06:12,510
And he showed you bar graphs that show 80%

1687
02:06:12,510 --> 02:06:14,950
of the investments are in bonds.

1688
02:06:16,250 --> 02:06:18,570
But he hasn't told you about the performance

1689
02:06:18,570 --> 02:06:19,710
of those investments.

1690
02:06:19,710 --> 02:06:24,590
Now, 70% of the insurance market is unregulated.

1691
02:06:25,010 --> 02:06:31,050
We are unable, and presumably you are unable, to get to compel the production of adequate

1692
02:06:31,050 --> 02:06:37,610
accurate information that will answer the question of what is really behind these rate increases.

1693
02:06:38,390 --> 02:06:45,250
And I would submit to you, Mr. Chairman, that for you to depart from the first goal that

1694
02:06:45,250 --> 02:06:47,990
you stated when you laid out the bill.

1695
02:06:47,990 --> 02:06:55,730
The goal being to assure that Texans have the right to full and adequate and fair compensation

1696
02:06:55,730 --> 02:06:58,790
before you clearly depart from that goal.

1697
02:06:59,090 --> 02:07:03,150
You need to have accurate information that allows you to get to the bottom

1698
02:07:03,150 --> 02:07:05,590
of what is really causing this problem.

1699
02:07:06,730 --> 02:07:09,290
Now, I appreciate your indulgence.

1700
02:07:09,410 --> 02:07:10,690
I know I've used up my time.

1701
02:07:10,910 --> 02:07:14,390
I was prepared to address this bill on a section by section basis.

1702
02:07:14,390 --> 02:07:24,630
I would be happy to enter to answer any questions about how the bill operates because this bill, Mr. Chairman, is like a whack-a-mole.

1703
02:07:25,230 --> 02:07:33,930
Now, I don't know how many of y'all have ever been to ice houses that have whack-a-moles, but a whack-a-mole is a box with holes in it.

1704
02:07:34,290 --> 02:07:40,510
And there's a little man that comes out of the box and you hit the man with a hammer and then another one comes up.

1705
02:07:40,510 --> 02:07:49,250
And that's what this bill reminds me of because it has more unintended consequences than a can of worms.

1706
02:07:49,650 --> 02:07:56,530
Now I'd be happy to go through and answer some questions if you would like about the specific mechanics of the bill

1707
02:07:56,530 --> 02:08:02,470
and I'd be also happy to answer some questions about what I think ought to be done to solve this crisis.

1708
02:08:03,590 --> 02:08:06,490
How many unintended consequences are there in a can of worms?

1709
02:08:10,370 --> 02:08:12,630
about as many as there are in a little bit of time.

1710
02:08:14,640 --> 02:08:16,380
Thank you very much. Sure, Mr. King.

1711
02:08:18,660 --> 02:08:20,680
Mr. Chairman, this, I guess, just panel is a whole.

1712
02:08:20,900 --> 02:08:28,760
And we're really talking about its policy up here because, you know, what do we think is a proper cap if there's a cap in Texas?

1713
02:08:31,000 --> 02:08:36,680
And, you know, there's been some horrible cases cited in that $250,000 isn't enough.

1714
02:08:36,680 --> 02:08:39,020
Well, that's the question of what is enough.

1715
02:08:43,600 --> 02:08:52,180
Isn't it also true that you can't ever pay enough to compensate someone for the type of injuries that you were commenting?

1716
02:08:52,840 --> 02:08:59,800
I mean, you're never going to pay a mother that's lost a child enough money for her to say that was worth that.

1717
02:09:00,520 --> 02:09:01,880
Isn't that the flip side of all?

1718
02:09:02,080 --> 02:09:08,240
Well, the mother who has lost a child will probably like an eye for an eye of vengeance against the wrongdoer who took the child away.

1719
02:09:08,240 --> 02:09:11,560
I don't think we're going to write the head into law.

1720
02:09:11,660 --> 02:09:17,280
The only compensation that we have is to allow a jury, same jury that we have in a criminal

1721
02:09:17,280 --> 02:09:22,080
case, to make the most important decisions that we have, who will live in a criminal

1722
02:09:22,080 --> 02:09:25,940
case, who will go to prison, how long they'll go to prison, and whether they'll be executed.

1723
02:09:26,520 --> 02:09:30,820
Those same jurors are who we trust to determine what that mother's law says.

1724
02:09:30,960 --> 02:09:34,800
We can't put a beam counteractuarial number on the death of a child.

1725
02:09:34,800 --> 02:09:42,100
But just isn't it just as true to say it's wrong to have a cap that you're saying that that's not just compensation?

1726
02:09:42,680 --> 02:09:45,560
Isn't it just as true to say there's no such thing as just compensation?

1727
02:09:46,940 --> 02:09:53,400
I mean you're you can't ever say that an injury received by someone, you know, I don't take clients who

1728
02:09:54,180 --> 02:09:58,420
You know and they'll say say what would it what's what would you take to not have to go through that?

1729
02:09:58,520 --> 02:10:02,740
There's not enough money in the world that I could take to not have to go through that and so

1730
02:10:02,740 --> 02:10:10,960
So it seems a little disingenuous when we're talking about saying a cap is too low to not

1731
02:10:10,960 --> 02:10:13,140
also say that no money is enough.

1732
02:10:13,800 --> 02:10:14,380
Does that make sense?

1733
02:10:15,180 --> 02:10:16,320
So and that's what I'm saying.

1734
02:10:16,420 --> 02:10:18,880
What we're really having to do up here is make a policy decision.

1735
02:10:19,080 --> 02:10:22,360
One are we're going to have caps and if so what is some reasonable amount.

1736
02:10:22,520 --> 02:10:26,840
And it's not going to be based on, it's going to be based on the decision we make

1737
02:10:26,840 --> 02:10:33,080
from a policy level of weighing what we think those things have on cost of health care provision

1738
02:10:33,080 --> 02:10:37,420
against what's fair and right for people and you're always going to have that tension

1739
02:10:37,420 --> 02:10:39,260
and there's really no answer to that, isn't that correct?

1740
02:10:39,720 --> 02:10:41,560
Everything you say is true.

1741
02:10:41,660 --> 02:10:48,240
There's no way to go to the parents who've lost a child and say that we can replace

1742
02:10:48,240 --> 02:10:49,640
what has been lost with money.

1743
02:10:49,840 --> 02:10:56,400
But what we can do under our system and what we have continued to do for 200 years

1744
02:10:56,400 --> 02:11:02,860
is to at least allow a jury to affirm the dignity of life and to give us some notion

1745
02:11:02,860 --> 02:11:09,140
of the magnitude of the harm and to speak with one voice about the magnitude of that

1746
02:11:09,140 --> 02:11:09,420
harm.

1747
02:11:09,560 --> 02:11:15,560
We do have safeguards in our appellate system that do set aside excessive awards.

1748
02:11:15,760 --> 02:11:18,440
It happens with great frequency in this state.

1749
02:11:18,680 --> 02:11:24,060
You can only read the Supreme Court reporters to see that this court has not allowed

1750
02:11:24,060 --> 02:11:30,000
excessive damages to be sustained. But it does allow a jury under our system to say this is wrong.

1751
02:11:30,320 --> 02:11:37,280
It does allow a jury to say we want drug addicted doctors off the staff. We want policing of doctors.

1752
02:11:37,900 --> 02:11:42,600
You know, it is a fact. Let me ask that. So then from a policy standpoint, what we want is a cap

1753
02:11:42,600 --> 02:11:48,840
or an amount that is sufficient since it can't compensate that's sufficient to discourage

1754
02:11:48,840 --> 02:11:50,140
the negligent behavior?

1755
02:11:50,500 --> 02:11:56,560
What we want is to trust the jury system, which has served us for 200 years.

1756
02:11:56,740 --> 02:11:59,620
We want to trust our judges who are elected.

1757
02:12:00,220 --> 02:12:03,360
We want to trust our Supreme Court to do the right thing.

1758
02:12:03,820 --> 02:12:10,240
And then we want to tackle insurance rates head on and do a rollback or some other kind

1759
02:12:10,240 --> 02:12:13,440
of reform that tackles that problem head on.

1760
02:12:13,860 --> 02:12:15,040
Insurance rates are too high.

1761
02:12:15,620 --> 02:12:16,940
There's no question about that.

1762
02:12:16,940 --> 02:12:21,480
And we ought to tackle that head-on, but we ought not to do it at the expense of those

1763
02:12:21,480 --> 02:12:22,700
who are truly injured.

1764
02:12:23,440 --> 02:12:27,800
We're prepared to be, as Hardy suggested, part of the solution.

1765
02:12:27,940 --> 02:12:29,440
We would like to be part of the solution.

1766
02:12:30,080 --> 02:12:35,320
If there are lawyers who need to be disciplined, then we're in favor of that.

1767
02:12:35,980 --> 02:12:40,680
If there are rates that ought to be rolled back, then let's look at the data, let's

1768
02:12:40,680 --> 02:12:43,880
look at the numbers, and let's make a fair decision.

1769
02:12:43,880 --> 02:12:48,640
But let's don't punish those who have been truly injured.

1770
02:12:49,000 --> 02:12:50,620
Mr. Minoff.

1771
02:12:50,760 --> 02:12:50,900
Yes.

1772
02:12:51,320 --> 02:12:51,980
Mr. Chairman.

1773
02:12:53,700 --> 02:12:55,380
Do you want us to trust the jury system?

1774
02:12:57,860 --> 02:12:58,420
Yes, I do.

1775
02:12:58,980 --> 02:13:02,460
Trust those who award damages.

1776
02:13:03,840 --> 02:13:07,940
Trust those people who find criminals guilty.

1777
02:13:12,970 --> 02:13:14,910
Why do we have safeguards in the system?

1778
02:13:16,230 --> 02:13:17,390
Why do we have appellate courts?

1779
02:13:17,390 --> 02:13:19,030
Why do we have remittances?

1780
02:13:19,650 --> 02:13:21,170
Why do we have a supreme court?

1781
02:13:22,870 --> 02:13:33,400
If we want to trust our jury system, particularly with our budget crisis, why don't we just get rid of all our repellent courts to support that?

1782
02:13:33,780 --> 02:13:34,940
We have checkpoints.

1783
02:13:37,260 --> 02:13:40,640
There's a fella in California waiting for you over there.

1784
02:13:41,280 --> 02:13:48,040
We would be happy to work with the committee to draft such legislation.

1785
02:13:49,400 --> 02:13:54,180
Seriously, we want to trust our jury system but at the same time you say we have adequate

1786
02:13:54,180 --> 02:13:57,500
safeguards when they get out of hand and they do get out of hand and they get out of hand

1787
02:13:57,500 --> 02:13:59,680
often and the safeguards are applied often.

1788
02:14:00,520 --> 02:14:07,140
Our constitutional system is built on checks and balances and as you know Mr. Chairman

1789
02:14:07,760 --> 02:14:13,220
having worked with you on some important cases and being aware of your work as a

1790
02:14:13,220 --> 02:14:17,760
lawyer we do rely on the jury system in the first instance but we have the

1791
02:14:17,760 --> 02:14:23,060
checks and balances of the trial judge and the appellate courts and the supreme courts.

1792
02:14:23,580 --> 02:14:26,180
It is a system we do trust and we do cherish.

1793
02:14:29,400 --> 02:14:33,160
Mr. Hampton, just a minute, I'm not sure that you and I have ever had a case together in

1794
02:14:33,160 --> 02:14:33,620
any respect.

1795
02:14:33,940 --> 02:14:38,060
If we have, then it's been back when I almost had here, so.

1796
02:14:38,600 --> 02:14:43,960
Well, actually, it was with my partner, Bill Stradley, it was an explosion case

1797
02:14:43,960 --> 02:14:48,260
where you represented the children, the Joe Nagy case, and we were able to.

1798
02:14:48,320 --> 02:14:49,400
I must have been the AdLitem.

1799
02:14:49,400 --> 02:14:50,800
You were the add-on, yes.

1800
02:14:52,040 --> 02:14:53,600
Oh, Mr. Hampton.

1801
02:14:53,800 --> 02:14:54,060
Yes, sir.

1802
02:14:58,130 --> 02:14:59,970
He's talking about insuring...

1803
02:15:14,900 --> 02:15:22,060
Mr. Chairman, that was another witness. I will tell you exactly what I said. I'd be happy

1804
02:15:22,060 --> 02:15:25,500
to repeat it. Please. I don't want to misunderstand you.

1805
02:15:25,500 --> 02:15:29,380
The point that I think is critically important,

1806
02:15:29,940 --> 02:15:33,220
and I appreciate you giving me an opportunity to reiterate it,

1807
02:15:33,560 --> 02:15:39,160
is that the picture is not complete of what's behind the rate increases.

1808
02:15:39,620 --> 02:15:44,320
And as I've described, the Department of Insurance says there are two drivers,

1809
02:15:44,840 --> 02:15:46,060
frequency and severity.

1810
02:15:46,480 --> 02:15:47,900
Frequency is a straight line.

1811
02:15:48,740 --> 02:15:51,620
He says 4%, but the line looks straight to me.

1812
02:15:51,620 --> 02:16:05,760
He says severity is increasing at an average cost per doctor of less than 11%, an average total payout including defense cost of 6.9%.

1813
02:16:05,760 --> 02:16:14,320
None of those numbers, if you've, there's been a lot of talk about common sense.

1814
02:16:14,880 --> 02:16:16,060
Apply common sense.

1815
02:16:16,420 --> 02:16:20,080
None of those numbers justify a 140% rate increase.

1816
02:16:20,080 --> 02:16:22,360
Well, here's a common sense question in that regard.

1817
02:16:22,600 --> 02:16:27,160
Why then, if this is a good market for insurance malpractice,

1818
02:16:27,760 --> 02:16:32,760
do we have only four insurers, one of which is insurer of last resort?

1819
02:16:33,100 --> 02:16:36,760
I really appreciate you asking me that question.

1820
02:16:36,940 --> 02:16:40,840
And I'm sorry that I don't have a blow-up of this, but I'd like to show it to you.

1821
02:16:40,920 --> 02:16:42,740
Can I show this to the committee?

1822
02:16:43,080 --> 02:16:45,180
Normally what we do is hand things to the committee clerk,

1823
02:16:45,180 --> 02:16:51,960
and what I'd like to do is she'll make sure that copies are made and distributed to each of us.

1824
02:16:52,060 --> 02:16:59,400
May I explain what this is going to show? Sure. Beginning in 1995 and continuing until the end

1825
02:16:59,400 --> 02:17:08,220
of the page, whatever that is. This comes from the TMA. This is the TMA Medical Liability Data

1826
02:17:08,220 --> 02:17:14,500
Study. And what this shows is for the last five years, insurance companies have priced

1827
02:17:14,500 --> 02:17:22,720
their premiums in Texas at a rate, these are premiums, these are losses, okay?

1828
02:17:24,440 --> 02:17:31,040
Now, if this were an investment, whoever thought this up would be in prison for running a Ponzi scheme.

1829
02:17:31,720 --> 02:17:33,140
But here's the problem.

1830
02:17:33,720 --> 02:17:40,100
The problem is that you've got unregulated carriers who are free to come into the state

1831
02:17:40,100 --> 02:17:47,480
and set the rates at this level, move out in the middle of the night, morph into another company,

1832
02:17:47,760 --> 02:17:54,220
go bankrupt, leave the state, leave the doctors hanging, and carriers such as TMLT

1833
02:17:54,220 --> 02:17:57,220
and the other regulated carriers are forced to compete.

1834
02:17:58,240 --> 02:18:04,960
Okay? In May, when Chairman Smithy's committee investigated this problem,

1835
02:18:06,120 --> 02:18:12,160
There was an exchange between Representative Island,

1836
02:18:12,360 --> 02:18:13,700
who's the vice chairman of the committee,

1837
02:18:14,640 --> 02:18:16,580
and the representative from TMLT.

1838
02:18:18,240 --> 02:18:21,380
And Representative Island, looking at this data,

1839
02:18:21,900 --> 02:18:24,360
said something asked the following question.

1840
02:18:24,860 --> 02:18:28,720
He said, why on earth would you, TMLT,

1841
02:18:29,340 --> 02:18:33,300
price your rates lower than you know you're going

1842
02:18:33,300 --> 02:18:38,020
need to price them to cover the losses. Why would you intentionally price your rate so low?

1843
02:18:38,920 --> 02:18:43,960
The answer from Bob Fields, who's the Vice President of Claims for TMLT was,

1844
02:18:45,380 --> 02:18:52,360
we had to. We had to protect our market share. Why did they have to protect their market share?

1845
02:18:52,560 --> 02:18:57,980
Because the state of Texas does not regulate, but 30% of the industry, and they allow all

1846
02:18:57,980 --> 02:19:04,180
These fly-by-night companies to come in and out and leave the regulated carriers and the

1847
02:19:04,180 --> 02:19:07,420
trust in a position where they have to fight the price war.

1848
02:19:07,940 --> 02:19:11,600
Well, if they're artificially pricing their product,

1849
02:19:14,040 --> 02:19:18,140
why then at a low rate, why then

1850
02:19:18,140 --> 02:19:21,460
all the skyrocketing increases in rates?

1851
02:19:22,140 --> 02:19:23,600
Exactly, Mr. Chairman.

1852
02:19:23,940 --> 02:19:24,920
That's my point.

1853
02:19:24,920 --> 02:19:30,100
Right, you don't know nobody in this room knows the answer to that question.

1854
02:19:30,520 --> 02:19:35,980
And before we start messing with the open-court provision that dates back to the Magna Carta,

1855
02:19:36,480 --> 02:19:43,040
well before we start limiting the rights of the most seriously injured people, the people

1856
02:19:43,040 --> 02:19:47,520
for whom the system ought to work the best, we need to get an answer to that question.

1857
02:19:48,100 --> 02:19:52,840
Mr. Chairman, in your opening remarks, you said that frivolous lawsuits cost this

1858
02:19:52,840 --> 02:19:54,740
state hundreds of millions of dollars.

1859
02:19:55,740 --> 02:19:58,840
The President says the problem is frivolous lawsuits.

1860
02:19:59,100 --> 02:20:01,800
The Governor says the problem is frivolous lawsuits.

1861
02:20:02,040 --> 02:20:05,360
The President of the TMA says the problem is frivolous lawsuits.

1862
02:20:05,940 --> 02:20:11,640
The first thing that needs to be done to solve this problem is to fix that problem.

1863
02:20:13,140 --> 02:20:18,540
Your bill, with all due respect, I know that you characterize this as a hurdle that's

1864
02:20:18,540 --> 02:20:20,180
placed in the way of frivolous lawsuits.

1865
02:20:20,720 --> 02:20:21,600
It isn't a hurdle.

1866
02:20:21,600 --> 02:20:24,120
It doesn't change anything.

1867
02:20:24,720 --> 02:20:27,360
There's nothing in your bill that will prevent somebody

1868
02:20:27,360 --> 02:20:30,380
from filing the most frivolous lawsuit and having it sit

1869
02:20:30,380 --> 02:20:34,420
there for 180 days, which is exactly what the system is now.

1870
02:20:35,620 --> 02:20:39,800
If you would like, I can share with you some ideas

1871
02:20:39,800 --> 02:20:44,060
that we're working on that I think will provide a solution

1872
02:20:44,060 --> 02:20:47,720
to the problem and provide a real solution

1873
02:20:47,720 --> 02:20:53,680
to the real mechanism for helping the doctors

1874
02:20:53,680 --> 02:20:58,260
in the highest risk areas, but I have to get a question

1875
02:20:58,260 --> 02:20:59,260
because my time's up.

1876
02:21:01,540 --> 02:21:02,300
Ms. Willard.

1877
02:21:03,560 --> 02:21:07,060
Mr. Meadow, you said we should trust juries.

1878
02:21:08,580 --> 02:21:09,760
Was that your study?

1879
02:21:09,760 --> 02:21:10,320
Yes, ma'am.

1880
02:21:10,600 --> 02:21:14,760
Then may I ask why that all juries weren't trusted

1881
02:21:14,760 --> 02:21:17,440
and there was venue shopping before we did limit

1882
02:21:17,440 --> 02:21:23,960
at that to some extent. And there are still some areas that we're some in some areas of

1883
02:21:23,960 --> 02:21:29,360
the state that show much higher rewards than others and that seems to be the popular place

1884
02:21:29,360 --> 02:21:29,720
to be.

1885
02:21:30,280 --> 02:21:37,880
If there are abuses in venue shopping then that should be fixed. There was a fix as

1886
02:21:37,880 --> 02:21:43,100
you referred to earlier and if there is still a problem in that regard we should

1887
02:21:43,100 --> 02:21:50,940
address it. There is nothing wrong with either a plaintiff or a prosecutor in a criminal case

1888
02:21:50,940 --> 02:21:56,680
selecting the most favorable jurisdiction. John Ashcroft, for example, when prosecuting

1889
02:21:56,680 --> 02:22:03,980
in the rifle cases, selected the most favorable venue where death penalty was most likely

1890
02:22:03,980 --> 02:22:10,340
to be sustained. So where there is legitimate venue shopping available, such as the Attorney

1891
02:22:10,340 --> 02:22:15,720
general utilized, then that's proper, but if there are abuses, I agree that they should

1892
02:22:15,720 --> 02:22:16,220
be addressed.

1893
02:22:16,360 --> 02:22:18,420
We can trust some juries more than others, but

1894
02:22:22,420 --> 02:22:25,220
I'll move on to the next, and I apologize

1895
02:22:25,220 --> 02:22:26,060
to the lady.

1896
02:22:26,060 --> 02:22:27,040
I don't know her name.

1897
02:22:27,120 --> 02:22:30,860
I would like to make you aware that Ms. Woolley is not a lawyer, you know.

1898
02:22:32,300 --> 02:22:35,500
And I apologize for not knowing the lady's name I was out when you gave your name,

1899
02:22:35,620 --> 02:22:36,600
so I apologize.

1900
02:22:36,600 --> 02:22:46,500
Ms. Sweeney, you said that your intent was to see that victims are as made as whole as possible.

1901
02:22:47,540 --> 02:22:53,740
I don't know what the average plaintiff attorney makes in an award. I've heard it's 40%.

1902
02:22:53,740 --> 02:22:58,240
Would you be willing to reduce your percentage in order to make them more whole?

1903
02:23:01,520 --> 02:23:07,740
To make the average individual whole, one, there has to be adequate compensation to them to begin with.

1904
02:23:07,740 --> 02:23:14,840
If you cut lawyers out of the system by ratcheting down on fees, not only on one side,

1905
02:23:15,340 --> 02:23:19,940
not on the defense side, the insurance companies can pay their lawyers as much as they want

1906
02:23:19,940 --> 02:23:24,800
for as long as they want to file as many motions as they want with an unlimited bank book

1907
02:23:24,800 --> 02:23:29,100
to hire as many experts as they want out of the insurance company's resources.

1908
02:23:29,760 --> 02:23:35,140
On the other side, the plaintiff hires one lawyer and that lawyer has to front those expenses.

1909
02:23:35,140 --> 02:23:40,340
If you're going to ratchet down on one side and not ratchet down on the other, that I think

1910
02:23:40,340 --> 02:23:46,000
would be another way of devaluing a family's ability to get compensation against an institutional

1911
02:23:46,000 --> 02:23:49,160
defendant, a powerful wealthy insurance company.

1912
02:23:49,660 --> 02:23:52,860
Now, in addition to that, if you're going to ratchet down then on the amount that a

1913
02:23:52,860 --> 02:23:58,200
family can recover, you're going to further impair a family's ability to seek redress

1914
02:23:58,200 --> 02:23:59,100
for an injury.

1915
02:23:59,580 --> 02:24:03,880
If in addition to that, you are then going to tell that family not only that, but

1916
02:24:03,880 --> 02:24:07,920
But we don't trust you families of Texas to contract freely with lawyers.

1917
02:24:08,480 --> 02:24:11,420
We trust insurance companies to do it with their lawyers.

1918
02:24:11,580 --> 02:24:15,380
The lawyers can get into a bidding war as they have done over what their fees should

1919
02:24:15,380 --> 02:24:16,200
be with each other.

1920
02:24:16,500 --> 02:24:18,860
We'll trust them to let the market separate.

1921
02:24:19,400 --> 02:24:24,160
But families of Texas, we will not trust you to contract freely with your lawyer.

1922
02:24:24,380 --> 02:24:28,700
We're going to come in and say to you, you can only hire a lawyer that's willing

1923
02:24:28,700 --> 02:24:31,100
to work for whatever percent we set.

1924
02:24:31,100 --> 02:24:35,660
That would be extraordinarily unfair to those families in the state of Texas.

1925
02:24:35,860 --> 02:24:37,000
Would it reduce my income?

1926
02:24:37,280 --> 02:24:40,120
Sure. It would reduce my income.

1927
02:24:40,500 --> 02:24:44,620
It would reduce my income by preventing families from getting to the courthouse

1928
02:24:44,620 --> 02:24:46,680
and making recoveries from outpractice.

1929
02:24:47,020 --> 02:24:51,320
And as it is in this system, I turned down probably,

1930
02:24:51,700 --> 02:24:55,120
and I've done the numbers many times, currently it's somewhere between 70

1931
02:24:55,120 --> 02:24:57,840
and 80 families for everyone that I can help.

1932
02:24:57,840 --> 02:25:03,620
And the standard sneer is right, you just want the big expensive cases.

1933
02:25:03,960 --> 02:25:16,620
No. What I want is a case where I can spend what is required under all of the requirements already in this law that make these the most expensive cases that there are to prosecute or very high.

1934
02:25:16,900 --> 02:25:23,020
I don't want to compare to business versus business that have unlimited coffers to fight each other at will.

1935
02:25:23,020 --> 02:25:29,500
But we have these enormous costs and if I have somebody who has merely a cosmetic injury

1936
02:25:29,500 --> 02:25:34,860
or who has merely a month or two in the hospital that they shouldn't have had but now they're

1937
02:25:34,860 --> 02:25:40,280
okay or who has merely that they were off work so long they lost a good job and now

1938
02:25:40,280 --> 02:25:44,460
they have another job and it's not nearly as good and doesn't have the future or any

1939
02:25:44,460 --> 02:25:52,260
of the other mirrorlies that are life changing but are not such that we can help those

1940
02:25:52,260 --> 02:25:56,200
as it is, all we're going to do is freeze out more families

1941
02:25:56,200 --> 02:25:59,000
by prohibiting them from having the right to contract.

1942
02:25:59,660 --> 02:26:02,840
Well, I guess I hear, write it down on insurance companies

1943
02:26:02,840 --> 02:26:06,040
and write it down on doctors, but not write it down on attorneys.

1944
02:26:06,320 --> 02:26:08,360
I am not saying write it down on doctors.

1945
02:26:08,560 --> 02:26:11,680
In fact, I would very much like to see this committee help doctors

1946
02:26:11,680 --> 02:26:15,420
who I believe are in a horrible vice where unregulated carriers

1947
02:26:15,420 --> 02:26:18,580
are running their rates unpredictably high,

1948
02:26:18,880 --> 02:26:20,420
where they can't get the insurance they need,

1949
02:26:20,420 --> 02:26:22,940
which does not have, this bill does not fix.

1950
02:26:23,100 --> 02:26:24,980
I would like to see doctors help with that.

1951
02:26:25,920 --> 02:26:30,940
I'm not at all in favor of ratcheting down on doctors except negligent doctors to kill a name

1952
02:26:30,940 --> 02:26:33,380
and I'm very much in favor of ratcheting down on those.

1953
02:26:33,620 --> 02:26:39,040
And a $250,000 cap for a dead soccer mom is not going to ratchet down on a drunk doctor.

1954
02:26:39,760 --> 02:26:40,440
Mr. Gattis.

1955
02:26:41,620 --> 02:26:45,140
Ms. Sweeney, what, I don't know that the answer was given.

1956
02:26:45,140 --> 02:26:50,160
What is your typical contingency fee in a malpractice case?

1957
02:26:50,440 --> 02:26:55,740
It depends on the case between 33% deferred and 40% which are standard in the industry.

1958
02:26:55,860 --> 02:26:56,920
Between 33% and 40%?

1959
02:26:56,940 --> 02:26:58,740
Depending on a lot of factors.

1960
02:27:00,140 --> 02:27:03,060
Right, on the difficulty in the case and those types of things.

1961
02:27:03,200 --> 02:27:03,500
Yes, sir.

1962
02:27:06,630 --> 02:27:12,570
Out of that, you talked about costs that it takes to bring this lawsuit.

1963
02:27:12,870 --> 02:27:14,510
Do those costs come out of your fee?

1964
02:27:14,870 --> 02:27:15,390
It depends.

1965
02:27:15,390 --> 02:27:20,910
The clients negotiate that on a case-by-case basis, and I will tell you that I have clients

1966
02:27:20,910 --> 02:27:22,810
on contracts different ways.

1967
02:27:23,190 --> 02:27:29,830
Sometimes I have some clients, very, very, very few, who choose to pay their own expenses.

1968
02:27:30,830 --> 02:27:37,270
There are not that many millionaire tort victims who can come out of pocket $200,000, but

1969
02:27:37,270 --> 02:27:39,850
I have had that happen in which case it's not an issue.

1970
02:27:40,410 --> 02:27:44,550
In the vast majority of cases, we view it as a loan that we make to the clients,

1971
02:27:44,550 --> 02:27:49,170
and I hasten to add no, we don't charge interest on these loans, we're not in the banking business,

1972
02:27:49,310 --> 02:27:54,390
but we advance the expenses to them to be reimbursed from their share at the conclusion.

1973
02:27:54,910 --> 02:28:00,210
We have other cases where it is rolled into the fee depending on the factors of that case.

1974
02:28:00,470 --> 02:28:04,650
The point is the clients are free, and we're free to make whatever agreement is appropriate

1975
02:28:04,650 --> 02:28:05,310
for the case.

1976
02:28:05,470 --> 02:28:14,150
Okay. So, and I think what you're saying is in a typical case, let's say you had a

1977
02:28:14,150 --> 02:28:20,810
$200,000 in costs. That would come out first and then your split would be on the $800,000.

1978
02:28:21,690 --> 02:28:26,410
Sometimes it's done off the top and sometimes it's done where the fee comes out first. It

1979
02:28:26,410 --> 02:28:28,230
depends on the contract that's entered into.

1980
02:28:30,270 --> 02:28:33,670
Okay, I see. Depending on the deal that's

1981
02:28:33,670 --> 02:28:40,610
made. Okay. All right. So that's the typical deal would be that costs come out either

1982
02:28:40,610 --> 02:28:44,430
the first or after and then y'all have your split comes in.

1983
02:28:44,610 --> 02:28:48,410
And remember we have to match essentially dollar for dollar

1984
02:28:48,410 --> 02:28:51,030
what the insurance companies spend on their experts,

1985
02:28:51,190 --> 02:28:54,450
on their expenses, on all of the exhibits that have to be used

1986
02:28:54,450 --> 02:28:56,430
on all of the expenses in the case.

1987
02:28:56,570 --> 02:28:56,690
Okay.

1988
02:28:56,930 --> 02:28:59,890
So when you hear that there are expenses improving these cases

1989
02:28:59,890 --> 02:29:01,730
because of what's in these statutes,

1990
02:29:02,050 --> 02:29:05,190
because the expenses are so high, so are ours.

1991
02:29:05,470 --> 02:29:09,210
Okay, I'm just trying to get a good idea of, you know,

1992
02:29:09,790 --> 02:29:15,330
When a plaintiff brings a case, you know, what's coming out of that award and where are those

1993
02:29:15,330 --> 02:29:15,810
things going?

1994
02:29:16,490 --> 02:29:23,830
The other thing that I'd like to just go into what Bill was going into while ago, Mr. Midoff,

1995
02:29:24,770 --> 02:29:31,430
one of the things that you said that we have ways for our appellate courts to, for those

1996
02:29:31,430 --> 02:29:35,550
cases that are excessive, they can bring those awards down.

1997
02:29:36,990 --> 02:29:44,330
But, I mean, kind of along the same line of questioning, I mean, who is really to say whether or not that's an excessive award?

1998
02:29:45,210 --> 02:29:59,870
I mean, and one of your comments was that, you know, if we put a cap, then basically what we're doing is we're letting somebody say that a broken arm would be the same worth the same as, say, somebody who's been brain damaged.

1999
02:30:00,300 --> 02:30:04,760
But in essence in our system, because we trust our juries, they can do that today.

2000
02:30:05,260 --> 02:30:10,280
We're not limiting their ability to say the same thing by putting a cap.

2001
02:30:10,780 --> 02:30:14,220
We're just putting a number there that says you can't go above that.

2002
02:30:14,660 --> 02:30:21,900
Well, you're allowing the jury to render the award, but then you're taking away that right by tapping it.

2003
02:30:23,080 --> 02:30:26,360
And that's the problem with this approach.

2004
02:30:26,360 --> 02:30:30,800
approach, this approach is a one-size-fits-all approach.

2005
02:30:31,520 --> 02:30:38,860
The value that we have in 200 years of jurisprudence is that we have judges who look at these

2006
02:30:38,860 --> 02:30:43,320
jury verdicts and compare them, as you know, with other verdicts in the area or in the

2007
02:30:43,320 --> 02:30:47,640
same state or throughout the country, and look at these factors and news so that you

2008
02:30:47,640 --> 02:30:53,140
have actually three different stages where the verdict is reviewed, both at the trial

2009
02:30:53,140 --> 02:30:55,900
level and at the intermediate level and at the Supreme Court level.

2010
02:30:55,900 --> 02:31:00,440
I understand that, Mr. Medoff, but in 200 years of jurisprudence, we still call them

2011
02:31:00,440 --> 02:31:06,600
non-economic, and as Sweeney's words, probably the better way to put it, we call them intangibles.

2012
02:31:07,720 --> 02:31:09,000
Because they are intangible.

2013
02:31:09,100 --> 02:31:13,320
It's hard to put a number on what these things are worth, right?

2014
02:31:13,480 --> 02:31:14,440
They are intangibles.

2015
02:31:14,880 --> 02:31:17,860
It is hard to put a number on it, and it is human dignity.

2016
02:31:18,380 --> 02:31:22,480
Well, I understand, and I respect the fact that it's human dignity, but part

2017
02:31:22,480 --> 02:31:27,680
of the problem in our system that we were presented with and you may agree or disagree

2018
02:31:27,680 --> 02:31:33,900
with what was presented last week was that part of the problem is trying predictability

2019
02:31:34,680 --> 02:31:40,420
of what an award is. And so, you know, we can kind of figure out what the economic damages

2020
02:31:40,420 --> 02:31:47,160
are. Everybody's got experts to figure those things out, right? We can kind of, we kind

2021
02:31:47,160 --> 02:31:50,420
of know what, you know, attorney's fees and those types of things are going to

2022
02:31:50,420 --> 02:31:55,100
costs are going to be involved, but we have no idea because what's going to happen in these

2023
02:31:55,100 --> 02:31:59,300
non-economic damages cases with, you know, what is an arm worth and what are those things.

2024
02:31:59,360 --> 02:32:03,820
And I'm not, I don't know that I'm prepared to answer that question either because if you

2025
02:32:03,820 --> 02:32:05,520
give me the choice, I'm going to say nothing.

2026
02:32:06,080 --> 02:32:07,240
But you want your arm back?

2027
02:32:07,420 --> 02:32:07,620
Yeah.

2028
02:32:08,000 --> 02:32:08,980
But I don't get it back.

2029
02:32:09,200 --> 02:32:13,420
But I don't know what amount of money that I get gets it back to me.

2030
02:32:13,420 --> 02:32:21,460
So I understand where y'all are coming from, but the other side of the story is there really

2031
02:32:21,460 --> 02:32:24,880
is no number that we can say is worth anything.

2032
02:32:25,280 --> 02:32:32,180
And so what we have to look at from a policy standpoint, as King was saying, is we need

2033
02:32:32,180 --> 02:32:37,060
some predictability in the system because predictability in the system helps us figure

2034
02:32:37,060 --> 02:32:39,420
out what those insurance rights are and where we're going to be.

2035
02:32:39,420 --> 02:32:45,760
And we fully appreciate the gravity of the problem that this committee is wrestling with

2036
02:32:45,760 --> 02:32:51,140
and that this legislature is wrestling with, and we're not here to discount the gravity

2037
02:32:51,140 --> 02:32:56,560
of the situation, and we do believe that something should be done about high insurance

2038
02:32:56,560 --> 02:32:57,060
rates.

2039
02:32:57,580 --> 02:32:58,160
All I would like to-

2040
02:32:58,200 --> 02:32:58,720
This is not it.

2041
02:32:59,400 --> 02:33:01,200
With all due respect, that's correct.

2042
02:33:01,500 --> 02:33:06,660
I just think that we ought to be very careful with the right this pressures before we

2043
02:33:06,660 --> 02:33:07,160
toss it out.

2044
02:33:07,160 --> 02:33:14,380
One last question. Is this Ms. Winnie, you were going into talking about really what

2045
02:33:14,380 --> 02:33:22,460
this bill does is devalues women, devalues those who are on the lower economic, socio-economic

2046
02:33:22,460 --> 02:33:28,440
status of our society, those types. And you talk about the stay-at-home mom being worth

2047
02:33:28,440 --> 02:33:34,900
less than somebody who sticks their kid in a daycare and goes off to work. And I'm

2048
02:33:34,900 --> 02:33:43,320
I'm asking this truly as a question, can we not in a case affix economic value to what

2049
02:33:43,620 --> 02:33:46,600
that person contributes to the family?

2050
02:33:47,280 --> 02:33:53,140
To affection, protection, emotional support, services, companionship, care and society.

2051
02:33:55,880 --> 02:34:03,760
Many years ago, when I started practicing, we were required to do that for children.

2052
02:34:04,960 --> 02:34:14,000
And the spectacle was bringing in economists to say what a child's contributions were worth

2053
02:34:14,000 --> 02:34:14,880
to the family.

2054
02:34:15,420 --> 02:34:22,580
It was an absurd spectacle, as is the spectacle, I think, of assigning $5 an hour, $8 an

2055
02:34:22,580 --> 02:34:25,740
hour or $12 an hour to putting a band-aid on a boo-boo.

2056
02:34:26,600 --> 02:34:31,400
Your child wants you there to do it and wants you there to kiss it and make it well.

2057
02:34:32,720 --> 02:34:38,260
I think having an economist come in and testify that the kiss next to the boo-boo is worth

2058
02:34:38,260 --> 02:34:43,740
X per hour and having the defense economist come in and say, no, she's not worth that

2059
02:34:44,440 --> 02:34:49,080
is an absurd way of trying to put a round peg in a square hole.

2060
02:34:49,080 --> 02:34:52,000
There are things that are more important than money.

2061
02:34:52,420 --> 02:34:53,280
Mommies are one.

2062
02:34:53,600 --> 02:34:54,760
I agree with that.

2063
02:34:55,240 --> 02:34:58,260
But the situation that we have,

2064
02:34:58,620 --> 02:35:01,420
if we pass the bill like it was today,

2065
02:35:02,500 --> 02:35:03,220
just assuming that,

2066
02:35:03,900 --> 02:35:05,540
yeah, throw your eye.

2067
02:35:06,680 --> 02:35:07,800
But assuming that,

2068
02:35:08,440 --> 02:35:12,420
a jury can still affix an economic value

2069
02:35:12,420 --> 02:35:14,680
to what that person contributes to the family.

2070
02:35:14,680 --> 02:35:18,000
And that, you know, as to, are you saying that?

2071
02:35:18,360 --> 02:35:25,400
No, no, under current law, there are, under the categories that we have, you might be

2072
02:35:25,400 --> 02:35:33,840
able to, you might be able to make a new category, but we don't have a category for, for mommying

2073
02:35:33,840 --> 02:35:39,020
or for, you know, what it's worth to be an old person being scalded to death per

2074
02:35:39,020 --> 02:35:39,380
hour.

2075
02:35:39,380 --> 02:35:40,340
I'm not asking that.

2076
02:35:40,800 --> 02:35:50,320
There are economic services that I will tell you this, the services that my mom gave in

2077
02:35:50,320 --> 02:35:55,280
my household, you could not earn in a lifetime.

2078
02:35:57,820 --> 02:36:06,420
I mean cooking, cleaning, chauffeur, as we've seen I think on every internet deal, the first

2079
02:36:06,420 --> 02:36:10,480
time you get email everybody sends you everything and I think one of the things I think my

2080
02:36:10,480 --> 02:36:11,260
mom sent it to me.

2081
02:36:11,260 --> 02:36:16,340
was to you know what is a mom work in all the services that they provide in that

2082
02:36:16,340 --> 02:36:21,520
is there you say that may be absurd but it is something that we could do but in

2083
02:36:21,520 --> 02:36:26,960
a case to say this is what a homemaker in this home is worth there's some cat in

2084
02:36:26,960 --> 02:36:30,740
a in a husband life situation we recognize loss of household services for

2085
02:36:30,740 --> 02:36:35,360
instance and and you find yourself proving up what's it worth to whichever

2086
02:36:35,360 --> 02:36:40,620
one it is to iron or to bag leaves or to mow the lawn but those are those

2087
02:36:40,620 --> 02:36:45,900
Those are all things that can be put out on the market that have a market value.

2088
02:36:46,320 --> 02:36:50,380
So I can hire someone to iron or I can hire someone to mow my yard.

2089
02:36:50,760 --> 02:36:55,020
I can't hire someone to mommy my children, to kiss the boo-boo, to be there.

2090
02:36:55,160 --> 02:36:59,780
I can't hire someone to be the Love Care Council guidance, solace, comfort, companionship

2091
02:36:59,780 --> 02:37:02,680
and normal sexual relations between myself and my husband.

2092
02:37:02,700 --> 02:37:06,260
And I think that's what we were going into earlier is the fact that, you know,

2093
02:37:06,300 --> 02:37:07,060
what is that worth?

2094
02:37:07,060 --> 02:37:12,520
I don't know that anybody can put a number on what that is worth and that's what we fight

2095
02:37:12,520 --> 02:37:19,340
with here and it's what a jury fights with also in a jury room and that is that part

2096
02:37:19,340 --> 02:37:22,220
that is so unpredictable in every jury award.

2097
02:37:22,440 --> 02:37:27,040
You know when the appellate courts look at those awards and sometimes reduce them what

2098
02:37:27,040 --> 02:37:32,820
they look at is evidence and the appellate opinions and I know you're familiar with

2099
02:37:32,820 --> 02:37:37,480
of them are replete with examples of courts going in saying, all right, what evidence

2100
02:37:37,480 --> 02:37:43,400
is there in this record of this case, of how bad the negligence was, how drunk the doctor

2101
02:37:43,400 --> 02:37:48,000
was, how often he had been drunk before, because that's one factor that's going to drive

2102
02:37:48,000 --> 02:37:50,480
an award, even for compensatory damages.

2103
02:37:50,780 --> 02:37:56,800
If the jury thinks this is pretty outrageous behavior, that is one aspect of what they

2104
02:37:56,800 --> 02:37:58,480
look at, and we want them to look at.

2105
02:37:59,140 --> 02:38:02,140
The other evidence is, what did the plaintiff prove?

2106
02:38:02,660 --> 02:38:05,720
Did they prove that this was a close and loving relationship

2107
02:38:05,720 --> 02:38:07,380
where there is a devastating loss?

2108
02:38:07,840 --> 02:38:08,660
Is that evidence?

2109
02:38:08,960 --> 02:38:10,700
So we do have those checks and balances.

2110
02:38:10,700 --> 02:38:14,520
I understand what that is, but I think it's a different answer

2111
02:38:14,520 --> 02:38:16,860
than from the question that I asked.

2112
02:38:17,260 --> 02:38:17,780
That's all right.

2113
02:38:19,560 --> 02:38:20,640
I would do the same thing.

2114
02:38:21,360 --> 02:38:24,420
I'll try again and I mean to answer your question

2115
02:38:24,420 --> 02:38:26,600
and I sincerely apologize if I haven't.

2116
02:38:26,600 --> 02:38:34,600
Now, the only other question that I really have is, under today's system,

2117
02:38:36,820 --> 02:38:38,440
let's say

2118
02:38:38,440 --> 02:38:47,440
we have a case of a million dollars, a million dollar verdict, and we say,

2119
02:38:49,540 --> 02:38:49,980
I don't give

2120
02:38:49,980 --> 02:38:54,400
any non-economic, I give 100,000 non-economic damages, okay?

2121
02:38:55,500 --> 02:39:00,560
That's what we figure is worth, and we have $900,000 of true economic damages, which would

2122
02:39:00,560 --> 02:39:05,060
mean truly, you know, past medical, future medical, lost wagering, you know, all those

2123
02:39:05,060 --> 02:39:05,700
types of things.

2124
02:39:07,460 --> 02:39:12,560
And we pull the expenses out of there, and then we pull your fee out of there, and

2125
02:39:12,560 --> 02:39:13,920
we haven't made a plan a whole.

2126
02:39:14,820 --> 02:39:17,320
And yet that's the only way they can get to the courthouse.

2127
02:39:17,580 --> 02:39:21,760
I think they should be tacked on in addition to the verdict, but I don't see that

2128
02:39:21,760 --> 02:39:22,200
in the bill.

2129
02:39:22,200 --> 02:39:24,700
And I don't think that's likely to happen.

2130
02:39:24,880 --> 02:39:25,580
Well, let me ask you a question.

2131
02:39:25,880 --> 02:39:32,580
If we tacked on fees in addition to it, and we don't, if we did that, we're not going

2132
02:39:32,580 --> 02:39:35,140
to let you set what the rate is, right?

2133
02:39:35,660 --> 02:39:36,020
Why?

2134
02:39:36,440 --> 02:39:37,040
Well, because.

2135
02:39:37,460 --> 02:39:38,860
I mean, because, yeah.

2136
02:39:40,480 --> 02:39:44,360
Why not my clients and me in a contractual relationship, if I could defend myself?

2137
02:39:44,360 --> 02:39:46,800
Well, if we do that, I'm going to become not going to your door ask for a job.

2138
02:39:47,600 --> 02:39:53,720
You know, because it's not a contractual relationship between you and your client anymore because

2139
02:39:53,720 --> 02:39:55,740
they're not the ones figuring out who's paying what.

2140
02:39:56,040 --> 02:40:00,900
I mean it's the doctor or it's the insurance company figuring out who's paying what at that point in time.

2141
02:40:01,280 --> 02:40:04,880
And if I have the choice and I'm the plaintiff or if I'm the plaintiff's lawyer I'm going to say,

2142
02:40:05,280 --> 02:40:08,220
well, my contractual fee is 50% of the award.

2143
02:40:08,620 --> 02:40:10,040
So, I mean, it's kind of reward.

2144
02:40:10,040 --> 02:40:14,700
No, because there are ethical guidelines that preclude anyone from charging an excessive fee.

2145
02:40:14,700 --> 02:40:20,320
And unlike the medical board, which may not have yanked a lot of license, the Texas Board

2146
02:40:20,320 --> 02:40:24,020
of Legal Examiners has yanked a lot of licenses for unethical behavior.

2147
02:40:24,260 --> 02:40:28,240
And the statistic that was asked earlier was that there have been no license taken for

2148
02:40:28,240 --> 02:40:29,120
negligent care.

2149
02:40:29,260 --> 02:40:33,300
There have been licenses taken for drunks and sexual abusers, but not for negligent.

2150
02:40:33,560 --> 02:40:38,820
So we are constrained by the canons of ethics to charge reasonable fees, which

2151
02:40:38,820 --> 02:40:40,860
we then contract with our clients for.

2152
02:40:40,860 --> 02:40:46,440
If we cap damages, if we cap non-economic damages, because they are so hard to affix,

2153
02:40:47,200 --> 02:40:51,980
but we didn't cap not economic damages because those do vary greatly.

2154
02:40:52,600 --> 02:40:57,860
And we did put some type of fix on contingency fees, a reasonable fee,

2155
02:40:58,120 --> 02:41:04,080
and had courts look at what type of risk the lawyer is taking, those types of things,

2156
02:41:04,180 --> 02:41:05,080
but an ultimate cap.

2157
02:41:05,080 --> 02:41:10,920
and there's some formulas out there that have been thrown about for doing those types of things.

2158
02:41:11,580 --> 02:41:16,760
If we did that, we would be assuring in some way, much more than we do today,

2159
02:41:17,280 --> 02:41:19,340
that a plaintiff would be being made whole.

2160
02:41:19,700 --> 02:41:23,940
You'd be assuring that a plaintiff had a capped amount that they could pay their lawyer

2161
02:41:23,940 --> 02:41:28,320
and that a defendant insurance company did not have a capped amount they could pay their lawyer

2162
02:41:28,320 --> 02:41:32,500
and you would be assuring once and for all a completely unbalanced playing field

2163
02:41:32,500 --> 02:41:36,080
where families would be completely unable to contract for a lawyer

2164
02:41:36,080 --> 02:41:38,400
and insurance companies could hire anyone they wanted.

2165
02:41:38,620 --> 02:41:40,920
That's depending on what the percentage would be

2166
02:41:40,920 --> 02:41:42,100
on the contingency fee.

2167
02:41:42,260 --> 02:41:43,760
Well, the rules of ethics would still be there.

2168
02:41:43,980 --> 02:41:48,720
I mean, how would it help the plaintiffs to have an excessive fee?

2169
02:41:48,840 --> 02:41:52,740
Are you talking about assigning an enormous percentage?

2170
02:41:53,020 --> 02:41:53,360
Never mind.

2171
02:41:53,780 --> 02:41:54,480
Ms. Davis?

2172
02:41:55,160 --> 02:41:56,240
Thank you, Mr. Chairman.

2173
02:41:56,540 --> 02:41:58,780
And just for the time, I appreciate your input.

2174
02:42:00,140 --> 02:42:02,000
I want to ask a couple of questions.

2175
02:42:02,000 --> 02:42:07,180
One is why are you all answering the question relative to the insurance cost?

2176
02:42:07,700 --> 02:42:10,020
Why don't we have someone else talking about that?

2177
02:42:10,100 --> 02:42:15,020
I just find it ironic that we're talking about insurance cost in you all

2178
02:42:15,020 --> 02:42:18,560
or having to talk about your fees as it relates to insurance cost.

2179
02:42:19,000 --> 02:42:23,640
So tell me how you think you can affect what insurance charges by your fee,

2180
02:42:23,900 --> 02:42:25,100
from your vantage point.

2181
02:42:25,300 --> 02:42:26,680
I don't understand that correlation.

2182
02:42:26,680 --> 02:42:36,000
So I wanted to ask, how do you think we can deal with increased insurance costs by dealing

2183
02:42:36,000 --> 02:42:36,760
with your fees?

2184
02:42:37,720 --> 02:42:38,240
I don't.

2185
02:42:39,220 --> 02:42:43,100
I just had a question of why that was coming this way.

2186
02:42:43,160 --> 02:42:48,860
The second question I wanted to ask relative to, and it was kind of a comment that I think

2187
02:42:48,860 --> 02:42:57,180
I feel teammate relative to the $250,000 cap in parents and I think Mr. Gattis is talking

2188
02:42:57,180 --> 02:42:58,080
about it as well.

2189
02:42:58,940 --> 02:43:02,980
I think they forget that they come to y'all because there's been something wrong and

2190
02:43:02,980 --> 02:43:06,280
I just want to make sure do they come to y'all that they have not been wrong and people

2191
02:43:06,280 --> 02:43:11,980
come to the lawyers if there's not been a wrong done and you set fees just, I mean

2192
02:43:11,980 --> 02:43:16,020
I'm just trying to understand how people get to you because part of my concern

2193
02:43:16,020 --> 02:43:21,140
is that we don't eliminate access to courts from people who have been wronged and do they

2194
02:43:21,140 --> 02:43:22,980
just come to you all if there's not been a wrong?

2195
02:43:23,560 --> 02:43:27,340
People come to us typically if they have a question and sometimes they've been wronged

2196
02:43:27,340 --> 02:43:31,200
and there is a legal remedy and sometimes they've come to us and they've been wronged

2197
02:43:31,200 --> 02:43:36,280
and there isn't a legal remedy and we have to tell them that like Paula we screen our

2198
02:43:36,280 --> 02:43:42,200
cases and we get between 500 and 700 calls a year I take about 30 to 40 of those cases.

2199
02:43:42,200 --> 02:43:42,880
Okay.

2200
02:43:46,720 --> 02:43:51,000
The other question I had, and this is about the bill, and I know that you all probably

2201
02:43:51,000 --> 02:43:58,260
looked at it, there's a provision for if you were to not, if there was a settlement offered

2202
02:43:58,260 --> 02:44:03,620
and you were not, and you went to court and did not accept the settlement and you lost,

2203
02:44:04,040 --> 02:44:09,220
you would have to pay the legal fees, the plaintiff would. But if the plaintiff got

2204
02:44:09,220 --> 02:44:12,120
more money than the defendant had offered.

2205
02:44:12,900 --> 02:44:14,100
They don't pay the legal fees.

2206
02:44:14,420 --> 02:44:17,900
Don't you think there are to be, I mean, I just found that kind of inconsistent?

2207
02:44:18,860 --> 02:44:25,760
Absolutely, Representative Davis, it's there and let me add that while this offer of settlement

2208
02:44:26,500 --> 02:44:33,360
provision is punitive in its intent and in its mechanism and it's intended to extort

2209
02:44:33,930 --> 02:44:34,860
rather than encourage.

2210
02:44:35,860 --> 02:44:42,020
My association would support a fair offer of settlement provision that went both ways

2211
02:44:42,980 --> 02:44:43,980
in a heartbeat.

2212
02:44:44,480 --> 02:44:44,900
Okay.

2213
02:44:45,440 --> 02:44:45,920
Thank you.

2214
02:44:47,320 --> 02:44:53,960
I have a couple of questions, I guess, of each of you.

2215
02:44:54,580 --> 02:44:56,440
I guess maybe we can start with Ms. Sweeney.

2216
02:44:57,440 --> 02:44:59,980
Have you ever settled a case for the c-

2217
02:45:00,000 --> 02:45:05,540
The cap of the amount of the doctor's insurance,

2218
02:45:09,410 --> 02:45:13,550
even though that cap or the amount of the doctor's

2219
02:45:13,550 --> 02:45:17,490
insurance was less than what you believe the damages were?

2220
02:45:18,790 --> 02:45:19,390
Yes.

2221
02:45:21,230 --> 02:45:22,950
Did you miss Minnell?

2222
02:45:23,250 --> 02:45:23,670
Did you miss Minnell?

2223
02:45:24,150 --> 02:45:24,850
Yes, I have.

2224
02:45:25,970 --> 02:45:26,850
Mr. Hampton?

2225
02:45:27,590 --> 02:45:32,490
Mr. Chairman, of course I have, and as you know, the reason is because the law in the

2226
02:45:32,490 --> 02:45:39,290
state of Texas makes it virtually impossible to recover from an individual because of the

2227
02:45:39,290 --> 02:45:44,570
difficulty and the exhaustive list of exempt assets and so forth.

2228
02:45:44,790 --> 02:45:45,670
It's a practical matter.

2229
02:45:45,850 --> 02:45:46,670
You're limited to insurance.

2230
02:45:50,130 --> 02:45:56,590
You're aware that the bill requires, without the constitutional amendment, the bill requires

2231
02:45:56,590 --> 02:46:00,710
that there be certain levels of insurance by positions.

2232
02:46:01,830 --> 02:46:04,690
I'm aware that there is an alternative provision.

2233
02:46:05,570 --> 02:46:12,610
And it actually increases the amount of the minimum amount of the levels of insurance

2234
02:46:12,610 --> 02:46:21,650
that each doctor must maintain in order to have in exchange a cap on the non-economic damages.

2235
02:46:22,330 --> 02:46:27,490
Yes, sir. And as I noticed, the levels that it requires are not even up to the level of the cap.

2236
02:46:27,490 --> 02:46:28,490
But

2237
02:46:31,790 --> 02:46:37,470
in each case, y'all have decided to take some sort of the amount of the policy limits

2238
02:46:38,990 --> 02:46:43,230
and not try to, in fact, make your plaintiff's poll.

2239
02:46:43,870 --> 02:46:45,350
That's not true in every case.

2240
02:46:45,630 --> 02:46:53,110
In some cases where if I thought the defendant was financially in a position to pay more

2241
02:46:53,670 --> 02:46:58,290
than the amount of insurance I pressed forward, but as a practical matter, it's hardly explained

2242
02:46:58,290 --> 02:47:06,690
And as you know, very often it's very difficult to get any real money going beyond the insurance

2243
02:47:07,410 --> 02:47:07,910
coverage.

2244
02:47:09,490 --> 02:47:13,430
And that's actually true for lawyers also, isn't it?

2245
02:47:13,790 --> 02:47:14,570
In terms of coverage?

2246
02:47:14,950 --> 02:47:18,910
Well, we carry all, all the lawyers carry malpractice, I think, assume that each of

2247
02:47:18,910 --> 02:47:19,990
you carry malpractice.

2248
02:47:20,090 --> 02:47:20,250
Right.

2249
02:47:20,490 --> 02:47:22,370
You do not have unlimited policies.

2250
02:47:23,490 --> 02:47:23,910
Unlimited?

2251
02:47:24,150 --> 02:47:24,270
No.

2252
02:47:24,850 --> 02:47:25,330
Do you?

2253
02:47:25,950 --> 02:47:27,550
No, I don't think that exists.

2254
02:47:28,390 --> 02:47:30,510
You have limits on your liability.

2255
02:47:31,490 --> 02:47:31,870
Okay.

2256
02:47:33,030 --> 02:47:33,630
Thank you.

2257
02:47:34,250 --> 02:47:35,950
You do? Okay. Go ahead.

2258
02:47:41,340 --> 02:47:41,860
How

2259
02:47:43,970 --> 02:47:47,310
much do the opposing lawyers typically charge an hour against

2260
02:47:49,640 --> 02:47:49,960
you?

2261
02:47:50,820 --> 02:47:53,100
Three fifty to five hundred perhaps more.

2262
02:47:56,580 --> 02:47:57,720
It depends on the case.

2263
02:47:59,160 --> 02:48:00,040
You're on the road.

2264
02:48:00,300 --> 02:48:01,760
Mr. Middle, I want to mind you.

2265
02:48:04,720 --> 02:48:06,020
That's what they tell me.

2266
02:48:14,180 --> 02:48:20,440
In the context of this discussion, obviously it's much lower than that, but I'll never forget

2267
02:48:20,440 --> 02:48:25,940
a defense lawyer telling me that he didn't care what the rate is as long as he got to

2268
02:48:25,940 --> 02:48:27,620
set the time, keep the time.

2269
02:48:28,780 --> 02:48:30,800
Well, I assume a lot of these are contracted.

2270
02:48:31,220 --> 02:48:32,840
Do you know what they typically contract at?

2271
02:48:33,440 --> 02:48:35,460
I wouldn't be the one to answer that question.

2272
02:48:35,460 --> 02:48:40,840
Okay. And how much do your experts charge you per hour?

2273
02:48:41,140 --> 02:48:42,620
As much as they possibly can.

2274
02:48:42,860 --> 02:48:44,060
What's the typical rate?

2275
02:48:44,840 --> 02:48:47,900
One of them told me what time he bills until somebody complains.

2276
02:48:48,380 --> 02:48:51,160
I mean, don't you have to have experts to prosecute?

2277
02:48:51,400 --> 02:48:51,560
Sure.

2278
02:48:51,720 --> 02:48:54,140
And how much do they charge you per hour, any of you?

2279
02:48:55,040 --> 02:49:01,500
It's not unusual to have $100,000 in expert charges in a case by the time at the end of the day.

2280
02:49:01,840 --> 02:49:04,940
Okay, but don't they do that on an hourly basis or do they do it on a lump sum basis?

2281
02:49:04,940 --> 02:49:06,380
They do it at an hourly basis.

2282
02:49:06,400 --> 02:49:07,540
And what do they typically charge you?

2283
02:49:08,320 --> 02:49:10,240
It's sometimes $1,000 now.

2284
02:49:11,400 --> 02:49:14,420
The rough bottom minimum, and it's unusual anymore,

2285
02:49:14,660 --> 02:49:17,360
is $200 or $250 an hour, and they go up from there.

2286
02:49:17,400 --> 02:49:19,820
And there's also different rates that they charge both sides.

2287
02:49:21,080 --> 02:49:24,780
They'll sometimes make a cheaper deal with one side

2288
02:49:24,780 --> 02:49:28,240
than the other, depending on their politics.

2289
02:49:28,740 --> 02:49:30,020
And they keep the time.

2290
02:49:30,580 --> 02:49:32,760
OK, now the opposing side, they

2291
02:49:32,760 --> 02:49:39,460
to get paid their attorney's fees, rates, and their expert charges typically on a monthly

2292
02:49:39,460 --> 02:49:40,200
basis, right?

2293
02:49:41,720 --> 02:49:46,220
If the insurance company pays them as they're supposed to, yes.

2294
02:49:46,420 --> 02:49:50,160
And then you all get carried until the case goes to fruition.

2295
02:49:50,600 --> 02:49:52,880
What's an average amount of time that you have to carry the case?

2296
02:49:53,680 --> 02:49:55,700
A couple of years, sometimes longer.

2297
02:49:59,010 --> 02:50:02,450
And this bill will lengthen it by almost a year in every case.

2298
02:50:03,210 --> 02:50:03,670
How's that?

2299
02:50:03,670 --> 02:50:09,410
But discovery is frozen for the first six months after a lawsuit is filed so you can't do anything

2300
02:50:09,410 --> 02:50:16,010
to move your case forward requiring that the expert report be filed at day 186 months with

2301
02:50:16,010 --> 02:50:16,750
no evidence.

2302
02:50:17,070 --> 02:50:22,370
So the expert is required to file a report that's subject to extraordinarily strict

2303
02:50:22,370 --> 02:50:25,110
scrutiny with no discovery.

2304
02:50:25,290 --> 02:50:28,530
So you have six months, you're going to sit there once you file your lawsuit and

2305
02:50:28,530 --> 02:50:30,410
you can do nothing to move it forward.

2306
02:50:30,410 --> 02:50:35,490
work. Following that, there's an automatic appeal built in to the case. If the judge

2307
02:50:35,490 --> 02:50:40,290
doesn't dismiss, there's an automatic direct appeal to the Supreme Court or to the Court

2308
02:50:40,290 --> 02:50:45,990
of Appeals. So you have another delay. Every time a case isn't dismissed, there'll be

2309
02:50:45,990 --> 02:50:50,650
an appeal. So you've just built in another delay. Doctors who want their cases over

2310
02:50:50,650 --> 02:50:55,310
have now got an extra year added under this bill. And claimants who want their case,

2311
02:50:55,550 --> 02:50:58,590
their recovery and their bills paid have had another year added. So you're going

2312
02:50:58,590 --> 02:51:02,610
to go from what the Supreme Court says we should try to do, which is 18 months,

2313
02:51:02,710 --> 02:51:06,470
which in reality is between 18 months and 24 months, you're going to add a year.

2314
02:51:06,950 --> 02:51:11,430
And so did I hear three years, is that to get a judgment or is that to go

2315
02:51:11,430 --> 02:51:13,690
through the appellate process as well, the final appeal?

2316
02:51:15,190 --> 02:51:16,150
Did I hear three years?

2317
02:51:16,250 --> 02:51:20,310
Well, it would under a sort of usual case with the way this bill is written,

2318
02:51:20,370 --> 02:51:24,250
would probably be about three years to get to the trial, which is that stage

2319
02:51:24,250 --> 02:51:26,710
where most cases are resolved as right around trial.

2320
02:51:26,710 --> 02:51:28,050
He had to go up on appeal.

2321
02:51:28,870 --> 02:51:32,110
The Dallas Court of Appeals has just had a big cut.

2322
02:51:32,790 --> 02:51:36,850
They are scrambling to figure out how they're going to keep up.

2323
02:51:37,570 --> 02:51:43,170
In fact, I think that they're trying to get some help, but they're already backlogged.

2324
02:51:43,210 --> 02:51:48,170
It will get exponentially worse, and then once you get through the local court of appeals

2325
02:51:48,170 --> 02:51:51,070
level, then the Supreme Court, if you have to go through all that, you're looking

2326
02:51:51,070 --> 02:51:51,630
at five years.

2327
02:51:51,630 --> 02:51:57,010
So how much time is this bill going to add to the general amount of time it's going to

2328
02:51:57,010 --> 02:51:58,490
take you to get to the jury?

2329
02:51:59,910 --> 02:52:02,530
To get to the jury, I think you're adding a year of delay.

2330
02:52:02,750 --> 02:52:03,330
You're building in.

2331
02:52:04,730 --> 02:52:10,510
Now, there was some reference about us allowing attorney's fees to be added on top of the

2332
02:52:10,510 --> 02:52:13,830
damages rather than being taken out of the damages, which is the current practice.

2333
02:52:15,290 --> 02:52:20,870
There are lots of existing statutes that award attorney's fees on top of the damages,

2334
02:52:20,870 --> 02:52:28,250
Correct. Does the legislature set any restrictions on those attorney's fees that are statutorily authorized?

2335
02:52:28,930 --> 02:52:33,930
They're all across the board in my experience. There are some that are just a strict hourly basis.

2336
02:52:34,150 --> 02:52:40,290
There are some that use what they call a load star analysis where they do you want to get into all this where they...

2337
02:52:40,290 --> 02:52:41,770
But is that statutory or is that case law?

2338
02:52:41,970 --> 02:52:46,110
Both. And then it's the case law interpretation of statutes.

2339
02:52:46,650 --> 02:52:54,570
Okay. Now, you mentioned something about no license being revoked for medical negligence.

2340
02:52:55,670 --> 02:53:01,330
I think that I asked a question like that earlier. Can you elaborate on that just briefly?

2341
02:53:01,630 --> 02:53:06,270
The morning news covered that in a piece that was widely distributed that would be happy to get with you,

2342
02:53:06,370 --> 02:53:12,610
that the Texas Board of Medical Examiners, according to their research, had not taken a license for bad medical care.

2343
02:53:12,610 --> 02:53:22,170
Now they were on drugs, selling drugs to your patients or taking drugs, either one or having sex with your patients.

2344
02:53:22,730 --> 02:53:26,470
They had taken licenses and criminal conduct fraud.

2345
02:53:26,730 --> 02:53:28,510
So was my question correct then basically?

2346
02:53:29,010 --> 02:53:32,430
Okay so no malpractice licenses in the last five years.

2347
02:53:32,510 --> 02:53:33,410
According to the morning news.

2348
02:53:36,880 --> 02:53:40,300
Now there was some discussion of putting more money into victims' pockets.

2349
02:53:41,820 --> 02:53:45,520
If we're going to do that, would it be a good idea to put more money into the doctor's

2350
02:53:45,520 --> 02:53:49,580
pockets by restricting their attorney's fees as well?

2351
02:53:55,740 --> 02:53:56,480
I'm not sure.

2352
02:53:56,920 --> 02:53:57,500
I'm not sure.

2353
02:53:57,500 --> 02:53:58,480
Maybe y'all can...

2354
02:53:58,480 --> 02:54:03,320
Well, the doctors are paying their malpractice and their insurance and their insurance is

2355
02:54:03,320 --> 02:54:04,900
paying the cost of the litigation.

2356
02:54:05,500 --> 02:54:10,340
So if we reduce the amount of attorney's fees that can be charged by the insurance

2357
02:54:10,340 --> 02:54:14,100
company's lawyers and ultimately we would be putting more money back into the

2358
02:54:14,100 --> 02:54:18,660
doctor's pockets isn't that right? If premiums are lower. Yes sir. Right I mean if

2359
02:54:18,660 --> 02:54:21,540
there's a direct correlation then it would it would work the same way on both

2360
02:54:21,540 --> 02:54:29,920
sides. Yes sir. Thank you. Ms. Sweeney you mentioned a delay of more than a year.

2361
02:54:31,820 --> 02:54:36,080
I understand have you read the bill that says that you cannot file an

2362
02:54:36,080 --> 02:54:38,920
expert report before 180 days?

2363
02:54:39,180 --> 02:54:44,920
No. What the bill says is that they do any discovery before 180 days or the filing

2364
02:54:44,920 --> 02:54:48,700
of the expert report, but there's a 180-day hurdle as you put it there.

2365
02:54:49,040 --> 02:54:51,420
Yeah. And that's the expert report that's currently required?

2366
02:54:53,280 --> 02:54:54,980
Yes, other than the 90 days.

2367
02:54:55,160 --> 02:54:59,460
It's the 90-day expert report now. Would you, would you, is it your testimony

2368
02:54:59,460 --> 02:55:00,760
you'd like to keep it in 90 days?

2369
02:55:01,380 --> 02:55:05,760
It's my testimony that I think that it is critical to do discovery in order

2370
02:55:05,760 --> 02:55:13,080
to get evidence on which to base those reports, which was the entire basis of that negotiated

2371
02:55:13,080 --> 02:55:18,260
time period when it originally came out, was to allow preliminary factual discovery to

2372
02:55:18,260 --> 02:55:21,840
be done before the expert report had to be generated.

2373
02:55:22,240 --> 02:55:26,240
Now this is not the testifying expert report. You're aware of this. You're not trying

2374
02:55:26,240 --> 02:55:28,500
to confuse this committee about this. No, sir, I'm not.

2375
02:55:28,640 --> 02:55:31,680
Okay. You're aware this is not the testifying expert report.

2376
02:55:31,680 --> 02:55:36,120
I'm completely aware of the provisions of the statute and what the 180-day report is.

2377
02:55:36,500 --> 02:55:40,620
There are 150 reported cases on it and I just re-read all of them.

2378
02:55:41,100 --> 02:55:48,160
And the 180-day, as you put it, report can become the testifying experts report.

2379
02:55:48,420 --> 02:55:52,840
If he can be the testifying expert, if he later modifies that report and uses it.

2380
02:55:53,200 --> 02:55:58,840
Or somebody else may come in or some other variation of that scheme can be employed. You're right.

2381
02:55:58,840 --> 02:56:03,460
So are you suggesting that we move the time up from 180 days to 90 days?

2382
02:56:03,740 --> 02:56:08,620
What I'm suggesting, Mr. Chairman, is that it is critical to the physician administration

2383
02:56:08,620 --> 02:56:14,960
of justice to allow discovery before that report is filed so that the expert can have information.

2384
02:56:15,620 --> 02:56:19,220
Peer review is not done among physicians based solely on records.

2385
02:56:19,800 --> 02:56:26,140
Peer review is done based on investigation, interviews, statements, and cross-examination

2386
02:56:26,140 --> 02:56:28,540
of the people involved within the peer review committee.

2387
02:56:28,900 --> 02:56:32,060
That's how a determination is made within that system

2388
02:56:32,060 --> 02:56:34,900
of whether or not a report should be generated

2389
02:56:34,900 --> 02:56:36,220
that misconduct occurred.

2390
02:56:36,700 --> 02:56:40,900
With this report, this process does say that in this system

2391
02:56:40,900 --> 02:56:43,640
where there is no access to interview those folks,

2392
02:56:43,760 --> 02:56:45,000
well, we can't go to the hospital

2393
02:56:45,000 --> 02:56:47,220
and start a peer review investigation

2394
02:56:47,220 --> 02:56:50,220
and we can't go take a deposition of the doctor either

2395
02:56:50,220 --> 02:56:52,180
before filing or after filing,

2396
02:56:52,320 --> 02:56:55,900
but we are going to require an expert finding far

2397
02:56:55,900 --> 02:57:01,480
beyond anything required after a full period of investigation before any discovery is done

2398
02:57:02,060 --> 02:57:06,040
that it stands the system on its head, it's a virtually impossible thing to accomplish.

2399
02:57:11,900 --> 02:57:12,200
I'm sorry.

2400
02:57:12,340 --> 02:57:16,660
Just one quick question, I guess, to Mr. Hampton.

2401
02:57:17,260 --> 02:57:18,400
You mentioned open courts.

2402
02:57:18,660 --> 02:57:22,960
Would the constitutional amendment cure any open courts problems, do you think, or

2403
02:57:22,960 --> 02:57:23,960
would it still?

2404
02:57:24,420 --> 02:57:26,460
So open courts are really a constitutional matter, right?

2405
02:57:26,620 --> 02:57:29,880
And I'm just curious, I haven't really compared the constitutional amendment to

2406
02:57:29,880 --> 02:57:35,620
the bill is the amendment designed to cure all the open courts problems or the constitutional

2407
02:57:35,620 --> 02:57:44,440
amendment goes way beyond the bill. The constitutional amendment is an attempt by the entire tort reform

2408
02:57:44,440 --> 02:57:51,320
movement to capitalize on the obvious goodwill that the medical community has by attempting

2409
02:57:51,320 --> 02:57:59,840
to bootstrap a broader cap that applies in all cases to the bill that we're here

2410
02:57:59,840 --> 02:58:05,280
we're talking about today. I'm not a constitutional expert. I'm not the one to ask about those

2411
02:58:05,280 --> 02:58:05,600
issues.

2412
02:58:15,780 --> 02:58:20,080
Okay. I just have a comment really to the chairman

2413
02:58:20,080 --> 02:58:24,640
up to the panel. And I understand your purpose and the way we're handling this with the panel

2414
02:58:24,640 --> 02:58:30,920
and all that and the time constraints. And so I understand why we don't maybe going through

2415
02:58:30,920 --> 02:58:37,020
it page by page, line by line as Mr. Hampton suggests is not what we want to do today

2416
02:58:37,020 --> 02:58:40,820
in this committee. But when I start talking about unintended consequences and there being

2417
02:58:40,820 --> 02:58:44,960
a whole can of worms and all these things in the bill, sometimes it feels, I feel like

2418
02:58:44,960 --> 02:58:49,860
half the legislation I file is just to fix what we did last time. And I don't mean to

2419
02:58:49,860 --> 02:58:53,680
imply that there are any flaws in your bill, Mr. Chairman. But I sure would be interested

2420
02:58:53,680 --> 02:58:59,620
if the panel was willing to reduce that to writing and provide it to the committee.

2421
02:58:59,840 --> 02:59:04,780
I think Mr. Hampton prepared to do that. And I would really appreciate if you're

2422
02:59:04,780 --> 02:59:12,600
doing that if you if you so choose is to is to detail for us the unattended

2423
02:59:12,600 --> 02:59:16,840
consequences that you see in this in this legislation is written.

2424
02:59:21,560 --> 02:59:22,640
We have we have

2425
02:59:22,640 --> 02:59:28,560
approximately 60 more people who want to testify and one more panel to go so it

2426
02:59:28,560 --> 02:59:33,840
would not be here so so you know no no I'm not trying to run you off but I

2427
02:59:33,840 --> 02:59:37,940
am I will decide it you know we're not interested in doing a bad job we're

2428
02:59:37,940 --> 02:59:41,660
Well, all we do is we're doing the right thing for everyone

2429
02:59:41,660 --> 02:59:47,040
instead of Texas, not just docs, not just insurance

2430
02:59:47,040 --> 02:59:50,520
companies, and not just soccer moms, and not just each other.

2431
02:59:50,640 --> 02:59:51,620
But we're really interested.

2432
02:59:51,780 --> 02:59:54,580
And I think you can tell by the questions here

2433
02:59:54,580 --> 02:59:57,200
and in the amount of time everybody's put into this

2434
02:59:57,620 --> 02:59:58,840
that it is, you know,

2435
03:00:00,180 --> 03:00:05,920
The intent of this committee is what I started out saying is to provide remedies for those wrongs

2436
03:00:05,920 --> 03:00:11,860
and protect the rights of those who have done the wrong in a fair and judicial, a fair and

2437
03:00:11,860 --> 03:00:16,860
equitable judicial system. So, you know, Mr. Hampden, if you were willing to do that for

2438
03:00:16,860 --> 03:00:20,220
us, we certainly are going to consider it. Absolutely, Mr. Chairman.

2439
03:00:22,480 --> 03:00:27,320
What's that? Oh, Mr. Capello was here with us and has been with us for a long time,

2440
03:00:27,320 --> 03:00:30,280
He's formally here. I've got to recognize him for the record.

2441
03:00:30,620 --> 03:00:32,580
Any other questions for this panel?

2442
03:00:32,940 --> 03:00:36,360
Okay, we have one more panel to go and then we're going to take an at ease.

2443
03:00:36,520 --> 03:00:41,640
So everybody can go get a cup of coffee or something and then we'll be, we'll be back at it.

2444
03:00:42,220 --> 03:00:47,400
The chair will now recognize my call and Joanne Howard.

2445
03:00:49,440 --> 03:00:53,320
Chair recognizes my call on HDR3.

2446
03:00:53,320 --> 03:01:02,080
He's four, HDR three, Mr. Hall is also going to speak in favor of H, House Bill three.

2447
03:01:03,840 --> 03:01:13,980
Ms. Howard is going to speak in favor of HDR three and speak in favor of HB three.

2448
03:01:22,180 --> 03:01:27,740
And those of you who are standing around the back please feel free to take this opportunity

2449
03:01:27,740 --> 03:01:34,140
to find the seat if you'd be more comfortable that way. Thank

2450
03:01:51,710 --> 03:01:54,850
you very much. I couldn't find my

2451
03:01:54,850 --> 03:01:55,450
purple coat.

2452
03:02:01,800 --> 03:02:05,240
I've got one. I'll stop by tomorrow.

2453
03:02:21,570 --> 03:02:23,210
All right

2454
03:02:26,320 --> 03:02:28,180
if we can all take a seat now so we

2455
03:02:28,180 --> 03:02:37,340
we can proceed. The chair is recognized our last panel, Mr. Michael, who as I

2456
03:02:37,340 --> 03:02:44,320
announced earlier, is in favor of H.J.R.3 and H.B.3 and Ms. Jillian Howard, who is in

2457
03:02:44,320 --> 03:02:50,640
favor of H.J.3 and H.B.3. Ms. Howard, would you like to proceed?

2458
03:02:51,000 --> 03:02:51,560
Thank you.

2459
03:02:51,640 --> 03:02:51,980
Thank you.

2460
03:02:52,600 --> 03:02:56,040
Good evening. I started to say good afternoon, but I think that you were

2461
03:02:56,040 --> 03:03:00,220
Good evening, Mr. Chairman, committee members.

2462
03:03:00,800 --> 03:03:04,520
My name is Joanne Howard and I'm here on today on behalf of two

2463
03:03:04,520 --> 03:03:08,960
of the four remaining carriers riding medical liability insurance

2464
03:03:08,960 --> 03:03:12,840
in the state of Texas, American Physicians Insurance Exchange,

2465
03:03:13,160 --> 03:03:17,720
APIE, and the Texas Medical Liability Trust, PMLT.

2466
03:03:18,520 --> 03:03:21,660
As a bit of background from 89 until 91,

2467
03:03:22,000 --> 03:03:24,080
I served as the governor's appointee as one

2468
03:03:24,080 --> 03:03:26,400
of the three state board of insurance members

2469
03:03:27,200 --> 03:03:31,840
after which time, during which time we had a workers comp crisis

2470
03:03:31,840 --> 03:03:32,580
in this day.

2471
03:03:33,400 --> 03:03:35,440
Then I worked with Clark Thomas Winters

2472
03:03:35,440 --> 03:03:38,680
in Newtown County as an attorney followed by the time

2473
03:03:38,680 --> 03:03:41,840
that I served as an appointee of the commissioner of insurance

2474
03:03:41,840 --> 03:03:45,140
to liquidate and solve an insurance company from the state

2475
03:03:45,140 --> 03:03:47,860
of Texas, one of which was ICA,

2476
03:03:48,000 --> 03:03:51,560
a very large MedMail carrier located in Houston.

2477
03:03:52,760 --> 03:03:57,220
Then I was appointed as a Federal Insurance Administrator

2478
03:03:57,220 --> 03:04:00,160
in Washington and ran the National Flood Insurance Program,

2479
03:04:00,640 --> 03:04:04,920
returning to Austin in 2001, which has been very pleasant

2480
03:04:04,920 --> 03:04:07,360
and back working in insurance regulatory areas.

2481
03:04:07,920 --> 03:04:10,360
As I said, I'm here on behalf of these two carriers

2482
03:04:10,940 --> 03:04:13,360
and they are here today and will be available

2483
03:04:13,360 --> 03:04:17,520
for information more specific on some areas

2484
03:04:17,520 --> 03:04:19,040
that you may wish to ask.

2485
03:04:19,040 --> 03:04:22,560
But we need to talk about the two drivers of availability

2486
03:04:22,560 --> 03:04:25,400
and affordability that are affecting the availability

2487
03:04:25,400 --> 03:04:27,260
and affordability of insurance.

2488
03:04:27,760 --> 03:04:30,900
And that is as Commissioner Montemayor has testified

2489
03:04:30,900 --> 03:04:33,240
before, frequency and severity

2490
03:04:33,620 --> 03:04:36,400
of medical malpractice lawsuits in the state.

2491
03:04:37,480 --> 03:04:40,180
The companies also have claims information,

2492
03:04:40,360 --> 03:04:42,820
which I think will be very relevant to looking

2493
03:04:42,820 --> 03:04:47,340
at the increased loss ratios that's made writing medical

2494
03:04:47,340 --> 03:04:51,320
the liability in the state of Texas, unpredictable and very expensive.

2495
03:04:52,420 --> 03:04:57,100
As every doctor here in town today and back in their hometowns can tell you,

2496
03:04:57,420 --> 03:05:03,520
this has a direct effect on their liability insurance on providing medical care

2497
03:05:03,520 --> 03:05:06,500
to Texas patients from the Red River to the Rio Grande.

2498
03:05:07,100 --> 03:05:11,120
In less than five years, you've heard of how many carriers have left the state,

2499
03:05:11,600 --> 03:05:13,540
some of these for various reasons.

2500
03:05:13,540 --> 03:05:16,300
but the fact is there are four here today.

2501
03:05:18,040 --> 03:05:22,080
Recent testimony by Dr. Richard Anderson of the Doctors Company,

2502
03:05:22,240 --> 03:05:25,600
one of the four from California, pointed out that it was the

2503
03:05:25,600 --> 03:05:29,580
unpredictability and volatility of the current system

2504
03:05:29,580 --> 03:05:31,320
in Texas is driving this.

2505
03:05:31,840 --> 03:05:35,600
Again, APIE and TMLT records show that the drivers

2506
03:05:35,600 --> 03:05:38,500
of this situation are the frequency and severity

2507
03:05:38,500 --> 03:05:40,680
of medical malpractice lawsuits.

2508
03:05:40,680 --> 03:05:46,940
The cost of claims that do not become lawsuits have risen also, but it's the cost of resolving

2509
03:05:46,940 --> 03:05:54,100
the lawsuits coupled with the overall severity that has been pushing the premium upward in

2510
03:05:54,100 --> 03:05:56,720
a steep incline for the past five years.

2511
03:05:57,620 --> 03:06:03,960
Most of these medical negligent claims and lawsuits are resolved without paying any damages.

2512
03:06:04,520 --> 03:06:08,280
And the question was asked, and I have some information along that line.

2513
03:06:09,280 --> 03:06:14,460
APIE, 96% of the claims are closed without any indemnity payment.

2514
03:06:15,380 --> 03:06:20,840
62% of the suits of the lawsuits are closed without any indemnity payment.

2515
03:06:21,420 --> 03:06:27,880
80% of both claims and lawsuits by APIE are closed without any indemnity payment.

2516
03:06:28,480 --> 03:06:35,280
For TMLT, those numbers run 98% of claims are closed without any indemnity payment.

2517
03:06:35,280 --> 03:06:40,000
72% of lawsuits closed without any indemnity payments.

2518
03:06:40,440 --> 03:06:44,820
And when you combine them, both claims and lawsuits, it's 85%

2519
03:06:44,820 --> 03:06:48,980
of all claims and lawsuits closed without any indemnity paid.

2520
03:06:49,740 --> 03:06:54,260
And yet the costs for closing those lawsuits are escalating

2521
03:06:54,260 --> 03:07:00,540
every year, particularly when one in four doctors now face a claim

2522
03:07:00,540 --> 03:07:02,940
or lawsuit in any given year in Texas.

2523
03:07:02,940 --> 03:07:10,120
Set another way, the increase of lawsuits with more insured to defend with all the associated

2524
03:07:10,120 --> 03:07:15,700
costs, even if later non-suited as the great majority are, has brought us here today.

2525
03:07:16,740 --> 03:07:21,420
These two medical liability carriers are of the opinion that if meaningful reform is

2526
03:07:21,420 --> 03:07:27,760
achieved in Texas, particularly by constitutional amendment, that reduction in cost as California

2527
03:07:27,760 --> 03:07:30,940
has experienced will happen in Texas as well.

2528
03:07:30,940 --> 03:07:36,780
But as you know, liability claims are called long-tail claims and you heard Mrs. Sweeney

2529
03:07:36,780 --> 03:07:40,460
talk about how long it takes the case to get to the court system.

2530
03:07:40,860 --> 03:07:46,040
Well, until these cases go to the court system, you don't know the ultimate cost.

2531
03:07:46,940 --> 03:07:49,380
So it will take a while for that to happen.

2532
03:07:50,280 --> 03:07:58,080
But any cost resulting from material reform would be expected to show up, but not immediately.

2533
03:07:58,080 --> 03:08:03,680
significantly. Significant statutory changes will encourage competition and I can't stress

2534
03:08:03,680 --> 03:08:10,240
how important this is from a regulatory standpoint. Because when competition manifests itself in

2535
03:08:10,240 --> 03:08:16,760
insurance marketplace, rates historically go down. It's important to realize though that

2536
03:08:16,760 --> 03:08:22,680
in order for tort reforms to have a positive effect over the long term, insurance costs

2537
03:08:22,680 --> 03:08:24,740
must trend down as well.

2538
03:08:26,140 --> 03:08:32,960
Patient access to care is tied to availability, affordability, and dependability,

2539
03:08:33,180 --> 03:08:37,720
and that means solvency of medical liability insurance coverage across the state.

2540
03:08:38,520 --> 03:08:44,380
Insurance, as you know, is the pooling of risk to transfer risk from the individual to an insurance mechanism,

2541
03:08:44,840 --> 03:08:47,220
and claims are a part of that process.

2542
03:08:47,840 --> 03:08:51,980
The carriers are in the business of paying medical negligent claims,

2543
03:08:51,980 --> 03:08:56,100
But it's the cost of resolving the 80% or more of the cases

2544
03:08:56,100 --> 03:09:00,420
without indemnity and the wide variance and unpredictability

2545
03:09:00,420 --> 03:09:04,380
of non-economic damages that brings these companies here today

2546
03:09:04,380 --> 03:09:06,840
to work with you to help find solutions.

2547
03:09:07,600 --> 03:09:08,140
Thank you.

2548
03:09:09,140 --> 03:09:10,040
Thank you very much.

2549
03:09:12,000 --> 03:09:14,460
Mr. Chairman, members of the committee, my name is Mike Hull

2550
03:09:14,460 --> 03:09:17,260
and I speak to you today in support of House Bill 3

2551
03:09:17,260 --> 03:09:19,900
and H.J.R. if you were ready for me to start.

2552
03:09:20,060 --> 03:09:21,600
I am. I just need you to tell me

2553
03:09:21,600 --> 03:09:22,780
which organization you're with.

2554
03:09:22,780 --> 03:09:29,000
I'm here. I'm a private attorney practicing in Austin, but I'm here on behalf of the Texas Alliance for Patient Access.

2555
03:09:30,260 --> 03:09:45,680
TAPA, as the Texas Alliance, is called as an organization of almost now 250 doctor, hospital, nurse, emergency care providers, their trade associations, liability carriers, and health insurance carriers.

2556
03:09:46,520 --> 03:09:53,340
We in Texas today face an unparalleled crisis in access to healthcare, and I couldn't help

2557
03:09:53,340 --> 03:10:00,940
but noticing I was involved in the tort reform conversation in 1995, which is what produced

2558
03:10:00,940 --> 03:10:06,820
the cost-bond report, and at that time we had the same discussion, well, what we need

2559
03:10:06,820 --> 03:10:12,020
to have is to, we need to reduce frequency and we need to regulate insurance, and if

2560
03:10:12,020 --> 03:10:13,800
we pass that report, it will do it.

2561
03:10:14,760 --> 03:10:17,220
And it hasn't done it, but what has happened is

2562
03:10:17,220 --> 03:10:19,980
the number of doctors have continued to leave the state.

2563
03:10:20,560 --> 03:10:25,520
We now have, if you're a family expecting a child

2564
03:10:25,520 --> 03:10:28,320
over half of the counties in Texas

2565
03:10:28,320 --> 03:10:30,360
don't have an OBGN who can see you.

2566
03:10:30,720 --> 03:10:33,220
If you're a family with a sick child that's been born

2567
03:10:33,220 --> 03:10:35,380
over half the counties in Texas

2568
03:10:35,380 --> 03:10:37,500
don't have a pediatrician that can see you.

2569
03:10:38,060 --> 03:10:41,520
I hear talk about, well, there's some concern

2570
03:10:41,520 --> 03:10:45,800
about this statistic or that statistic, but there's no explaining that the Department of Health says

2571
03:10:46,500 --> 03:10:51,640
over half the counties don't have these doctors. There's no explaining the fact

2572
03:10:51,640 --> 03:10:57,640
that the number of carriers has dropped over 500% in two years. Now if the market is so great,

2573
03:10:57,700 --> 03:11:02,880
why are they leaving? And there's no explanation for that. There's no explanation for the fact

2574
03:11:02,880 --> 03:11:10,180
that total jury verdicts, total awards increase exponentially every year.

2575
03:11:10,600 --> 03:11:17,420
There's no explanation for the fact that awards for economic damages have doubled in the last 10 years or less

2576
03:11:17,420 --> 03:11:23,860
that the awards for non-economic damages have increased over 500% in that same timeframe.

2577
03:11:24,400 --> 03:11:25,600
And what has that done?

2578
03:11:26,320 --> 03:11:30,520
What that has done is it increased rates at an enormous percent.

2579
03:11:30,520 --> 03:11:34,860
It's forced doctors to quit, forced hospitals to restrict their practice.

2580
03:11:35,140 --> 03:11:41,060
And if this is left unchallenged, we can debate all we want about what this chart

2581
03:11:41,060 --> 03:11:44,000
or this pie chart or this bar graph shows.

2582
03:11:44,180 --> 03:11:47,460
But the fact is we're just losing doctors every day that we continue debating.

2583
03:11:48,600 --> 03:11:53,780
So TABLA strongly supports both HJR3 and House Bill 3.

2584
03:11:53,900 --> 03:11:59,360
And believe it is key to the solution of restoring access to doctors.

2585
03:11:59,360 --> 03:12:05,820
The centerpiece and the part of the both the resolution and the bill that I wanted to spend

2586
03:12:05,820 --> 03:12:10,560
a few minutes discussing is the limitation on non-economic damages.

2587
03:12:11,980 --> 03:12:16,840
I'm sorry that representative Davis isn't here because I would respond to her question

2588
03:12:16,840 --> 03:12:18,080
how do we know it works.

2589
03:12:18,660 --> 03:12:19,940
This is how we know it works.

2590
03:12:20,260 --> 03:12:25,260
We have micro is almost 30 years experience and I'll probably get these percentages

2591
03:12:25,260 --> 03:12:31,500
is wrong a little bit, but the micro increases since micro has been in place have been less

2592
03:12:31,500 --> 03:12:33,700
than 200 percent in their premiums.

2593
03:12:34,100 --> 03:12:38,540
The premium increases across the rest of the country during that same timeframe have

2594
03:12:38,540 --> 03:12:40,620
been over 500 percent.

2595
03:12:41,100 --> 03:12:47,020
We have actual hands-on, you can put your fingers on it, data that it works, it's

2596
03:12:47,020 --> 03:12:47,640
not a theory.

2597
03:12:48,220 --> 03:12:53,100
The American Academy of Actuaries has looked at this same situation and has concluded

2598
03:12:53,100 --> 03:13:00,780
that CAPS work. It, in fact, has recommended a $250,000 CAP as the only limit on the CAP

2599
03:13:00,780 --> 03:13:07,680
that will work, and it's done that by comparing states with CAPS to states without CAPS to

2600
03:13:07,680 --> 03:13:13,740
a state that had a CAP and then got rid of it and saw its malpractice premium skyrocket

2601
03:13:14,300 --> 03:13:18,220
and the state plunge itself into the problem that we have today.

2602
03:13:18,220 --> 03:13:24,280
The July 2002 report of the United States Health and Human Services Commission concludes

2603
03:13:24,280 --> 03:13:31,280
that a cap of this size is the only centerpiece solution to solve the crisis that's being

2604
03:13:32,820 --> 03:13:33,920
discussed today.

2605
03:13:34,060 --> 03:13:38,380
And there are a whole host of others that all reach the same conclusion.

2606
03:13:38,740 --> 03:13:44,000
You have to have a cap, it has to be this size, and if you don't have that, all the

2607
03:13:44,000 --> 03:13:45,720
other tort reform is window dressing.

2608
03:13:45,720 --> 03:13:46,640
Now,

2609
03:13:49,160 --> 03:13:54,040
I agree with Representative King and not that my agreement matters, but I kind of share

2610
03:13:54,040 --> 03:14:00,300
his point of view as probably a better way to say that, that CAPS are essentially a policy

2611
03:14:00,300 --> 03:14:00,820
question.

2612
03:14:02,540 --> 03:14:07,860
And it's a policy question reserved to you as a legislature, as a House of Representatives,

2613
03:14:08,180 --> 03:14:08,700
as a member.

2614
03:14:09,640 --> 03:14:16,500
And what the Texas Supreme Court said in the Luthis case essentially is that you

2615
03:14:16,500 --> 03:14:19,720
You are powerless to address that policy question.

2616
03:14:20,600 --> 03:14:26,340
The court said you can't do it because there's a constitutional concern that prevents you

2617
03:14:26,700 --> 03:14:28,240
from addressing that question.

2618
03:14:28,720 --> 03:14:34,660
And all HJR does is say that you have the right to address that policy question.

2619
03:14:35,020 --> 03:14:39,920
You can address it in healthcare and pursuant to this bill.

2620
03:14:40,200 --> 03:14:44,400
And if you want to address it in some other area at some other time, you certainly

2621
03:14:44,400 --> 03:14:44,820
can.

2622
03:14:44,820 --> 03:14:46,800
And if you don't want to, you don't have to.

2623
03:14:47,440 --> 03:14:54,880
All the resolution says is that you have the power to address what is clearly a policy question.

2624
03:15:00,000 --> 03:15:09,580
Now, House Bill 3 then proposes the 250 cap not indexed, includes punitive, and to be applied

2625
03:15:09,580 --> 03:15:14,940
on a per-claimant basis. And each of those is very important. The per-claimant basis is

2626
03:15:14,940 --> 03:15:22,940
a prime example of ways in which if you don't have that, a cap is rendered ineffective. In

2627
03:15:22,940 --> 03:15:28,820
a typical case that I see today where the wrongful death is potentially in play, you

2628
03:15:28,820 --> 03:15:34,780
will see a hospital suit and you will see all 10 nurses in that hospital who provided

2629
03:15:34,780 --> 03:15:40,760
some care at some point in time suit. And that hospital is on the hook for that hospital

2630
03:15:40,760 --> 03:15:46,620
and all 10 of those nurses. And there's not one cap there and it's disingenuous to argue

2631
03:15:46,620 --> 03:15:51,900
that there is. There's 11 caps. And if the plaintiff's bar could find 20 people

2632
03:15:51,900 --> 03:15:57,860
that employed that work at that hospital that touched that patient, then they'd

2633
03:15:57,860 --> 03:15:59,580
There would be 20 of them and there would be 20 caps.

2634
03:16:00,480 --> 03:16:03,340
And that's the problem with a per-defendant cap.

2635
03:16:03,800 --> 03:16:08,820
It has to be, for claiming, and the studies that I mentioned earlier all address that

2636
03:16:08,820 --> 03:16:12,080
fact, that it has to be per-claimant, per medical injury.

2637
03:16:13,120 --> 03:16:18,320
Now we believe that, you know, the public opinion polls clearly say that the voters

2638
03:16:18,320 --> 03:16:24,040
will support a cap on non-economic damages, there's Gallup poll, Harris poll and others.

2639
03:16:24,040 --> 03:16:34,000
We believe that the 250 cap in House Bill 3 is constitutional, even if the voters fail to approve the amendment.

2640
03:16:35,520 --> 03:16:46,420
First, the Lucas Court in their verbiage said, well, you have to have a trade, you have to have a quid, and the quid that we're looking at isn't enough.

2641
03:16:47,300 --> 03:16:50,740
So this bill offers additional quids.

2642
03:16:50,740 --> 03:16:57,780
So you would have a different bill, you would have a different court looking at additional

2643
03:16:57,780 --> 03:17:06,220
quids and we believe that House Bill 3, the first cap, the no insurance cap, is constitutional

2644
03:17:06,220 --> 03:17:11,940
standing alone on that basis or at least that there are arguments that it is and also that

2645
03:17:11,940 --> 03:17:18,460
the legislature has a police power to pass a cap in an emergency situation like we believe

2646
03:17:18,460 --> 03:17:25,940
this is, that would pass constitutional muster. However, if the voter spelt or proved the amendment

2647
03:17:26,580 --> 03:17:32,100
and the Supreme Court looks at all these arguments and concludes that a cap without something

2648
03:17:32,100 --> 03:17:39,700
more than what is already there in House Bill 3 isn't enough, I said that right, then

2649
03:17:39,700 --> 03:17:46,820
House Bill 3 proposes an additional, an alternative cap and it says that in addition to all

2650
03:17:46,820 --> 03:17:53,260
the other trades in the bill that we're going to require residents to carry insurance, we're

2651
03:17:53,260 --> 03:17:59,660
going to require hospitals to carry insurance, and we're going to require all other providers

2652
03:17:59,660 --> 03:18:00,680
to carry insurance.

2653
03:18:01,160 --> 03:18:09,000
The amounts escalate over time for all providers except hospitals, excuse me, except residents.

2654
03:18:10,140 --> 03:18:11,240
And what will this do?

2655
03:18:11,580 --> 03:18:12,560
What is the quid?

2656
03:18:12,560 --> 03:18:17,480
In addition to the insurance, in addition to, well, the data is that claims get resolved

2657
03:18:17,480 --> 03:18:21,700
not slower, not three years or five years, but faster.

2658
03:18:22,160 --> 03:18:26,680
And that's the experience in micro that claim payments get made for meritorious claims

2659
03:18:26,680 --> 03:18:30,720
six months faster under this kind of reforms than without it.

2660
03:18:31,040 --> 03:18:36,140
You put doctors back to work, you stop medical migration that's clearly occurring now.

2661
03:18:36,680 --> 03:18:41,200
There are numerous studies that show a cap will reduce defensive medicine.

2662
03:18:41,200 --> 03:18:43,860
It will reduce health care costs for small business.

2663
03:18:44,400 --> 03:18:49,400
It will reduce the cost of the government's Medicaid burden, stabilize the insurance market,

2664
03:18:49,980 --> 03:18:52,140
reduce and lower premiums.

2665
03:18:52,760 --> 03:19:00,040
That physicians in hospitals will not be compelled to reduce certain services and

2666
03:19:00,040 --> 03:19:04,300
that it will increase the willingness of physicians in hospitals to provide treatments

2667
03:19:04,300 --> 03:19:10,600
that carry a relatively high risk of failure but offer the only real prospect of success

2668
03:19:10,600 --> 03:19:17,700
for seriously ill patients, just like the patient who was reported in the paper today.

2669
03:19:18,860 --> 03:19:24,640
So I'm prepared to answer questions as we have them, and I know you've heard a lot about this

2670
03:19:24,640 --> 03:19:29,200
and you've said for a long time, and so I'm happy to not answer questions too.

2671
03:19:30,820 --> 03:19:32,660
Thank you. Now where's Mr. Harbett?

2672
03:19:33,520 --> 03:19:37,080
I think I heard the answer to one of my questions, that it's 70% of the lawsuits

2673
03:19:37,080 --> 03:19:40,300
suits that are filed that result in no recovery, did I hear that right?

2674
03:19:40,820 --> 03:19:49,560
I gave it to you for both companies, but for ATIE it is the 62% of suits closed with no

2675
03:19:49,560 --> 03:19:55,620
indemnity payment and for TMLT 72% of suits closed with no indemnity payment.

2676
03:19:56,580 --> 03:19:58,320
So you heard correctly, you heard something.

2677
03:19:58,340 --> 03:20:00,100
Do you know often how those are resolved?

2678
03:20:00,300 --> 03:20:04,260
I mean, do those go to trial and basically the jury throws them out or?

2679
03:20:04,260 --> 03:20:09,040
At some point in the trial process.

2680
03:20:09,380 --> 03:20:11,300
But there's no settlement in those cases, right?

2681
03:20:11,300 --> 03:20:12,680
There's no settlement in those cases.

2682
03:20:12,680 --> 03:20:12,820
Very interesting.

2683
03:20:12,940 --> 03:20:18,120
However, the important thing to remember is that there are costs from extending that lawsuit.

2684
03:20:18,180 --> 03:20:18,300
Sure.

2685
03:20:18,420 --> 03:20:21,240
And those costs continue to rise.

2686
03:20:21,640 --> 03:20:29,360
In other words, if you have a claim without a lawsuit, on average it's about $1,500 to close the claim.

2687
03:20:29,360 --> 03:20:36,480
If it goes to a lawsuit, it jumps to about $32,000 on average from one of the company's

2688
03:20:36,480 --> 03:20:36,760
numbers.

2689
03:20:37,340 --> 03:20:42,380
So those costs are all built into the system that's causing this escalation.

2690
03:20:42,720 --> 03:20:43,080
Thank you.

2691
03:20:43,260 --> 03:20:45,340
That's the statistic I needed.

2692
03:20:46,780 --> 03:20:47,980
One question.

2693
03:20:48,360 --> 03:20:54,920
We've heard the statistic of the 11% annual increase in severity awards or something

2694
03:20:54,920 --> 03:20:55,500
like that.

2695
03:20:55,560 --> 03:20:56,080
Is that right?

2696
03:20:56,080 --> 03:21:01,600
I think we heard that from several places, and I think the gentleman from California

2697
03:21:01,600 --> 03:21:09,820
was asked, why is malpractice insurance increasing so much higher than the awards are increasing?

2698
03:21:12,570 --> 03:21:18,510
First am I understanding the discrepancy, and secondly, is there any explanation or

2699
03:21:18,510 --> 03:21:19,730
am I mixing apples and oranges?

2700
03:21:20,890 --> 03:21:26,210
There is one very easy explanation in it, which is this.

2701
03:21:26,490 --> 03:21:34,390
You know, we passed the, y'all passed, we helped the 95 cost bond provision.

2702
03:21:37,910 --> 03:21:44,130
Now, almost all data that I've ever seen from anybody says you're looking

2703
03:21:44,130 --> 03:21:49,030
at at least two years before those reforms will take effect, and you may be looking

2704
03:21:49,030 --> 03:21:57,510
at as many as five years, so you take the people that are most against this and

2705
03:21:57,510 --> 03:22:01,070
they're going to say two and the most forward are going to say five, so surely

2706
03:22:01,070 --> 03:22:05,390
the truth must be somewhere in between there. But what the legislature did in

2707
03:22:05,390 --> 03:22:09,970
1995 was impose an immediate right rollback. I think what I'm probably

2708
03:22:09,970 --> 03:22:12,750
asking is an insurance question and maybe somebody else can answer it but I

2709
03:22:12,750 --> 03:22:18,090
think I've heard that the the awards are going up 11% a year in average

2710
03:22:18,890 --> 03:22:24,150
and yet the insurance premiums are going up 50% a year or something like that, and maybe

2711
03:22:24,150 --> 03:22:24,550
yes.

2712
03:22:24,550 --> 03:22:26,190
Well, that is part of the question I'm answering.

2713
03:22:26,350 --> 03:22:30,430
What happened is that, you know, the comment was made that Bob Fields said, well, we had

2714
03:22:30,430 --> 03:22:33,930
to raise our rates to protect the market share.

2715
03:22:34,550 --> 03:22:35,970
Well, that all boils into this.

2716
03:22:36,090 --> 03:22:42,030
That's just not quite, that that was an incomplete explanation of what Mr. Fields

2717
03:22:42,870 --> 03:22:47,890
said was, well, we didn't have to, but all the other carriers had to reduce

2718
03:22:47,890 --> 03:22:52,310
their premiums. It was a, I'm

2719
03:22:54,490 --> 03:22:57,010
not in a position to criticize the legislature, but they were

2720
03:22:57,010 --> 03:23:03,830
forced to roll back their rights on reforms that had no effect at that time. When the reforms,

2721
03:23:04,550 --> 03:23:12,410
when the right rollback then rescinded what you saw was a big jump for people to catch

2722
03:23:12,410 --> 03:23:16,710
up with the fact that their rights had been artificially suppressed for several years

2723
03:23:16,710 --> 03:23:18,350
because of the rate rollback.

2724
03:23:19,050 --> 03:23:23,530
And so to say, well, as the gentlemen said, well, if you just go back two or three years,

2725
03:23:24,070 --> 03:23:26,570
you know, these rate increases have been just horrendous.

2726
03:23:26,650 --> 03:23:29,090
Well, that was just an incredibly disingenuous statement.

2727
03:23:29,350 --> 03:23:30,690
He failed to let you know.

2728
03:23:30,870 --> 03:23:31,830
Yeah, we're playing catch-up.

2729
03:23:32,130 --> 03:23:33,450
We're playing a lot of catch-up.

2730
03:23:33,470 --> 03:23:36,010
And so theoretically at some point, once we catch up,

2731
03:23:36,150 --> 03:23:39,990
then the rates will go up in line with severity in some fashion.

2732
03:23:40,130 --> 03:23:42,110
Is that generally right or is that too simplistic?

2733
03:23:43,590 --> 03:23:46,110
It's a more complicated question than I can answer.

2734
03:23:46,110 --> 03:23:47,050
But I'll take Joanne.

2735
03:23:47,110 --> 03:23:47,390
Okay.

2736
03:23:47,650 --> 03:23:47,810
Thank you.

2737
03:23:47,850 --> 03:23:48,510
Oh, thank you.

2738
03:23:51,570 --> 03:23:56,690
One of the things that I can tell you from PMLT's records shows that the amount of claims

2739
03:23:56,690 --> 03:24:06,330
payments have increased 41% for those 15% that don't settle or go away without indemnity

2740
03:24:06,330 --> 03:24:06,830
payments.

2741
03:24:06,830 --> 03:24:15,570
For that 15% that end up being a settlement or a jury award, the amounts are increasing

2742
03:24:15,570 --> 03:24:19,330
41% since 1995.

2743
03:24:20,350 --> 03:24:23,790
So you see that that goes to the severity.

2744
03:24:25,530 --> 03:24:31,550
Don't forget it's not just the claims payment and the jury award, it's also these other

2745
03:24:31,550 --> 03:24:36,990
costs of defending the suits that are closed that add to those costs.

2746
03:24:37,210 --> 03:24:39,710
So you have to look at all of those costs combined.

2747
03:24:40,110 --> 03:24:41,650
So where does the 11% come from?

2748
03:24:42,250 --> 03:24:44,110
I mean, is it eluded somehow or?

2749
03:24:45,530 --> 03:24:46,170
Let's see.

2750
03:24:46,330 --> 03:24:46,950
I'm sorry.

2751
03:24:47,170 --> 03:24:54,110
I like that that came from Dr. Anderson's testimony where he said the number I have

2752
03:24:54,110 --> 03:25:03,190
for 11 is that the frequency of the nation at an average is 11% Texas, the frequency is

2753
03:25:03,190 --> 03:25:05,550
probably reaching a plateau right now.

2754
03:25:05,710 --> 03:25:09,350
It's maybe not increasing so much, but it's a very high plateau.

2755
03:25:09,910 --> 03:25:11,550
It's about 22%.

2756
03:25:12,370 --> 03:25:15,650
So you have a lot of cases filed in Texas.

2757
03:25:16,230 --> 03:25:18,690
In California it's about 17%.

2758
03:25:18,690 --> 03:25:24,330
Now, that's the 11% of the national average if that's the 11% you're referring to.

2759
03:25:24,350 --> 03:25:30,430
Well, I think somebody before y'all said 4% annual increase in frequency and 11% in severity

2760
03:25:30,430 --> 03:25:35,110
and so probably I should hear from somebody in insurance rather than do the roll with that.

2761
03:25:35,110 --> 03:25:40,230
Well, I'm happy to have either one of the carriers here with me today speak to that

2762
03:25:40,230 --> 03:25:43,570
and they can already just sign as a witness.

2763
03:25:43,830 --> 03:25:49,530
So we'll ask them to reference that number.

2764
03:25:49,530 --> 03:25:57,090
And then one other thing, and I don't want to get a long answer, but if I understand this bill doesn't do much to punitives.

2765
03:25:57,430 --> 03:26:01,610
It just focuses on non-economic damages. Is that right?

2766
03:26:02,750 --> 03:26:17,410
Well, the definition of non-economic in both the 250 cap and the alternative 250 cap both are defined in such a way to include punitives.

2767
03:26:18,270 --> 03:26:24,350
Okay, so this bill caps non-economic damages which are actual damages and it caps punitive

2768
03:26:24,350 --> 03:26:24,850
damages.

2769
03:26:26,390 --> 03:26:33,410
The bill, I don't want to get in at plus with you about the words, but the bill has

2770
03:26:33,410 --> 03:26:40,310
defined the definition of non-economic includes what are traditionally considered non-economic

2771
03:26:40,310 --> 03:26:41,910
and includes punitive.

2772
03:26:42,150 --> 03:26:45,810
Okay, but in the typical case punitive is not an actual damage, right?

2773
03:26:45,810 --> 03:26:48,910
that you have actual damages and you have punitive damages.

2774
03:26:49,570 --> 03:26:49,930
Correct.

2775
03:26:50,230 --> 03:26:54,550
And non-economic damages are typically called actual damages, right?

2776
03:26:56,620 --> 03:27:06,160
Some economic damages in my part of the world, I think of actual damages as the medical and the wages.

2777
03:27:06,500 --> 03:27:10,440
I think of the non-economic wages as subjective.

2778
03:27:11,600 --> 03:27:16,340
So in a medical malpractice case there's not an award of something called punitive damages.

2779
03:27:16,340 --> 03:27:17,780
That doesn't happen.

2780
03:27:18,060 --> 03:27:19,260
It doesn't happen very often.

2781
03:27:19,680 --> 03:27:20,220
There could be.

2782
03:27:20,240 --> 03:27:20,740
Oh, so it can't.

2783
03:27:20,840 --> 03:27:25,040
So the jury can award economic, non-economic, and punitive.

2784
03:27:25,420 --> 03:27:26,220
They have that option, right?

2785
03:27:26,220 --> 03:27:26,940
They have that option.

2786
03:27:27,520 --> 03:27:27,840
Okay.

2787
03:27:28,480 --> 03:27:29,180
Theoretically, yes.

2788
03:27:29,200 --> 03:27:29,420
Okay.

2789
03:27:29,500 --> 03:27:32,820
This bill is lumping together punitive and non-economic.

2790
03:27:33,360 --> 03:27:33,740
Yes, sir.

2791
03:27:33,960 --> 03:27:38,360
The way it's done is essentially it's capping everything except non-economic.

2792
03:27:39,260 --> 03:27:39,980
Except economic.

2793
03:27:40,100 --> 03:27:40,600
Excuse me.

2794
03:27:40,740 --> 03:27:41,200
Except economic.

2795
03:27:41,420 --> 03:27:41,680
Okay.

2796
03:27:41,980 --> 03:27:43,340
Okay, great.

2797
03:27:43,960 --> 03:27:46,660
And I'll add right here from an insurance perspective,

2798
03:27:47,080 --> 03:27:50,520
PNC damages are not covered under the policy of indemnity.

2799
03:27:52,470 --> 03:27:52,910
Okay.

2800
03:27:55,120 --> 03:27:57,620
And then just one, again, I don't want a long answer

2801
03:27:57,620 --> 03:27:59,760
because we've got a lot of territory covered,

2802
03:27:59,980 --> 03:28:02,440
but one thing I'm struggling with in this bill is the removal

2803
03:28:02,440 --> 03:28:05,140
of disabilities of minors.

2804
03:28:06,660 --> 03:28:09,060
Okay. And I struggle to see the logic,

2805
03:28:09,240 --> 03:28:11,680
but I just like a one-minute answer in that, if I could,

2806
03:28:11,820 --> 03:28:12,440
if that's possible.

2807
03:28:12,440 --> 03:28:17,180
One minute answer, that ought to be a relatively neutral provision, and here's why, at least

2808
03:28:17,180 --> 03:28:23,940
according to TMLT's data, and I can flip through here and find it, but I can tell you the short

2809
03:28:23,940 --> 03:28:32,400
answer is 99 plus percent of all damage claims resulting from a claimed injury before the

2810
03:28:32,400 --> 03:28:35,300
age of 12, a file by the age of 12.

2811
03:28:35,880 --> 03:28:37,000
So why do we need this?

2812
03:28:37,280 --> 03:28:39,960
Because a doctor has to buy tail insurance.

2813
03:28:40,420 --> 03:28:46,920
The doctor is 60, 65, he's ready to go out of practice and he's looking at being sued

2814
03:28:46,920 --> 03:28:48,980
for another 6, 8, 10 years.

2815
03:28:49,240 --> 03:28:50,540
What can we just change limitations?

2816
03:28:51,480 --> 03:28:53,460
That's what the bill does, is change limitations.

2817
03:28:54,700 --> 03:29:00,020
Okay, just in a different, I mean I don't think a removal of disability is being the same thing as limitations,

2818
03:29:00,340 --> 03:29:01,940
but this is a backdoor way together.

2819
03:29:04,560 --> 03:29:11,180
The original 4590I had this, said a minor had to bring their claim to the Supreme Court

2820
03:29:11,180 --> 03:29:16,720
in the SACS case, said, well, that's an open court's problem because a minor is disabled

2821
03:29:16,720 --> 03:29:18,400
from following the lawsuit.

2822
03:29:18,680 --> 03:29:21,160
So what this bill says, well, then they're not.

2823
03:29:22,040 --> 03:29:23,000
They're not disabled.

2824
03:29:23,480 --> 03:29:27,200
Okay, but under this, you're still envisioning that it's actually a guardian or an ex-brand

2825
03:29:27,200 --> 03:29:27,940
that brings the suit.

2826
03:29:28,260 --> 03:29:30,080
That's the way I think it would work out in practice.

2827
03:29:30,080 --> 03:29:34,620
because we don't specify that here, but my crystal ball says that's the way it would work.

2828
03:29:34,620 --> 03:29:40,180
Under this, if I'm a 15 year old, I can just call up and hire my own lawyer and file a suit myself, right?

2829
03:29:41,080 --> 03:29:43,560
As far as the provisions of the bill, yes, sir.

2830
03:29:44,060 --> 03:29:51,280
I think in practice you're going to see an increase in guardians be appointed to represent minors

2831
03:29:51,280 --> 03:29:54,880
because I suspect the court will think they can use some guidance.

2832
03:29:55,620 --> 03:29:58,420
How do you appoint a guardian for somebody who's had their disabilities removed?

2833
03:29:58,420 --> 03:29:58,900
It's fine.

2834
03:29:59,580 --> 03:29:59,820
It's fine.

2835
03:30:00,000 --> 03:30:03,960
I don't think the court can do a lot of things if they want to do it and thank the court, and thanks the minor needs help.

2836
03:30:04,620 --> 03:30:08,280
Well, but if my disability is removed, I don't get a guardian on that.

2837
03:30:08,980 --> 03:30:12,340
My understanding of the law, I'm no longer a minor, I'm now an adult.

2838
03:30:13,060 --> 03:30:14,580
I don't think the bill goes that far.

2839
03:30:14,720 --> 03:30:18,520
I think your minor's, your disability is removed for the purposes of filing the lawsuit.

2840
03:30:19,300 --> 03:30:25,560
I think the court has extraordinary discretion after that to handle plans as in its court.

2841
03:30:25,980 --> 03:30:29,320
It does that all the time now. I don't think it's anything odd or unusual.

2842
03:30:29,320 --> 03:30:32,200
So my disabilities would be removed, but I'd still have a guardian.

2843
03:30:33,300 --> 03:30:38,140
I don't know. Your question was that I think a court would do that, or at least that's what I heard you asking.

2844
03:30:38,920 --> 03:30:41,020
Yeah, that's what I think would happen in practice.

2845
03:30:42,120 --> 03:30:42,620
Thank you.

2846
03:30:42,900 --> 03:30:43,140
Yes, sir.

2847
03:30:45,200 --> 03:30:46,380
Can I ask a follow-up to that?

2848
03:30:46,540 --> 03:30:46,760
Yes.

2849
03:30:49,140 --> 03:30:54,000
I'm not a lawyer. I don't understand. I just want to make sure that when I have children,

2850
03:30:54,480 --> 03:30:59,180
so this doesn't mean that my kids can drop and hire a lawyer without me even knowing that they've done it.

2851
03:30:59,180 --> 03:31:08,300
And then, well, I'm serious, if that disability is removed, they go hire lawyers, sign whatever

2852
03:31:08,300 --> 03:31:13,200
contract they want to sign with that lawyer for paying certain attorney's fees or whatever

2853
03:31:13,200 --> 03:31:13,740
it is.

2854
03:31:14,560 --> 03:31:20,400
But I'm still their guardian, am I going to be responsible for, I mean, I have nothing

2855
03:31:20,400 --> 03:31:23,340
to do with whether they go and contract with a lawyer, am I going to be responsible

2856
03:31:23,340 --> 03:31:25,080
for paying those fees?

2857
03:31:26,360 --> 03:31:27,440
Can they make me responsible?

2858
03:31:29,380 --> 03:31:35,140
I heard Ms. Sweeney correctly. You wouldn't have any obligation under a contingency contract.

2859
03:31:35,400 --> 03:31:38,480
It depends on what kind of contract. But she also said they do different types.

2860
03:31:38,620 --> 03:31:43,400
Sometimes you agree to pay. Who knows what kind of contract they're going to do with them.

2861
03:31:43,640 --> 03:31:47,100
Well, there's nothing in the bill that would impose liability on you.

2862
03:31:48,040 --> 03:31:52,740
I just wondered if General Law already imposed a liability on me as a parent.

2863
03:31:52,740 --> 03:31:55,120
it. That's my child and her.

2864
03:31:58,950 --> 03:32:01,530
I mean, I think there's lots of parts of the law where my

2865
03:32:01,530 --> 03:32:10,310
child does and poses a debt on me, right? I'm looking for guidance because I'm not a lawyer.

2866
03:32:10,770 --> 03:32:13,110
I gave you kids business cards last time.

2867
03:32:15,830 --> 03:32:18,450
I'm bound by, you know, I've read that damn

2868
03:32:18,450 --> 03:32:20,610
mind. I just hope this isn't one of those unintended

2869
03:32:22,650 --> 03:32:24,170
I mean, I understand what you're trying to do.

2870
03:32:24,290 --> 03:32:28,850
I just want to make sure that we're not opposing the liability on some parents.

2871
03:32:29,150 --> 03:32:34,730
I do think in practice there are a lot of safe cards, presumably, you know, if you had

2872
03:32:34,730 --> 03:32:40,410
a serious or what you thought was a compensable injury to one of your children, you would

2873
03:32:40,410 --> 03:32:43,750
have pursued that earlier in any event.

2874
03:32:44,170 --> 03:32:48,830
So if you didn't, and I was a lawyer looking at this bill, I want to know where you

2875
03:32:48,830 --> 03:32:52,070
were, if a 12 or 15 year old walks into my office.

2876
03:32:53,310 --> 03:32:57,770
I think there's a lot of practical safeguards to this, but my daughter's got a car.

2877
03:32:57,770 --> 03:32:57,790
My daughter's got a car.

2878
03:33:00,130 --> 03:33:02,230
Surely we can fix that.

2879
03:33:06,150 --> 03:33:07,590
Can I ask a couple of questions?

2880
03:33:07,770 --> 03:33:08,170
Yes, please.

2881
03:33:09,450 --> 03:33:13,970
I had a question on the phone on that part of this, so and I understand what we're

2882
03:33:13,970 --> 03:33:21,870
what we're trying to do here is make sure that if the defendant offers a reasonable settlement

2883
03:33:23,370 --> 03:33:27,730
that the plaintiff has a motive to accept it, and I guess what we're doing in this bill

2884
03:33:27,730 --> 03:33:34,550
on pages four and five here is saying if the plaintiff rejects a reasonable settlement,

2885
03:33:34,550 --> 03:33:36,270
we're going to impose some penalties.

2886
03:33:37,810 --> 03:33:38,670
What are the penalties?

2887
03:33:39,590 --> 03:33:43,590
Well, yeah, I'm not sure I want to sign off on penalties, but I think I do think...

2888
03:33:43,590 --> 03:33:44,630
Maybe penalties are a long word.

2889
03:33:44,910 --> 03:33:45,290
I'm sorry.

2890
03:33:46,130 --> 03:33:47,670
They put some easements in there.

2891
03:33:47,850 --> 03:33:49,170
They work up on penalties, you know.

2892
03:33:49,630 --> 03:33:56,010
Well, the plaintiff is going to have to, essentially, or the plaintiff is going to have to pay attorney's fees.

2893
03:33:56,410 --> 03:33:57,310
That's the gist of it.

2894
03:33:57,590 --> 03:33:57,830
Okay.

2895
03:33:58,210 --> 03:34:02,150
My question is, it says that any time...

2896
03:34:02,150 --> 03:34:05,810
All the attorney's fees or just the attorney's fees from the date the settlement has been rejected?

2897
03:34:05,810 --> 03:34:08,370
The day from the settlement offer rejects it forward.

2898
03:34:08,550 --> 03:34:10,210
Yeah, that's why I understand it.

2899
03:34:12,430 --> 03:34:18,330
This settlement offer from the defense can be offered at any time before the 30th day before the commencement of trial.

2900
03:34:18,950 --> 03:34:23,070
At any time from the day that the claim was filed until 30 days.

2901
03:34:23,650 --> 03:34:26,690
My question, and it's an honest one, is I don't know the answer to that.

2902
03:34:27,250 --> 03:34:33,490
If the defense puts out a settlement offer right at the very beginning, you know, the moment it's filed,

2903
03:34:34,350 --> 03:34:40,590
Does the plaintiff attorney, that's before discovery is taking place, does the plaintiff

2904
03:34:40,590 --> 03:34:46,870
attorney really have the wherewithal, the knowledge to make a decision on whether that's a reasonable

2905
03:34:46,870 --> 03:34:48,830
settlement offer or not?

2906
03:34:50,170 --> 03:34:52,050
We haven't even taken depositions yet.

2907
03:34:52,290 --> 03:34:53,190
How do you know?

2908
03:34:53,790 --> 03:34:54,350
How can you determine?

2909
03:34:54,530 --> 03:34:56,310
How does the plaintiff attorney make that decision?

2910
03:34:57,030 --> 03:34:57,730
Is it reasonable?

2911
03:34:58,370 --> 03:35:06,010
Well, I think it is. I think in practice you're not going to see that so often. But I tell you, the plaintiff's attorneys do that to me now.

2912
03:35:06,510 --> 03:35:09,390
Yeah, but there's no penalty. I mean, I'm sorry, keeping us in that word.

2913
03:35:09,690 --> 03:35:14,370
But I'll use the word penalty. There is one. In fact, I have a letter right here.

2914
03:35:15,450 --> 03:35:22,890
Remember, if you all remember, last week we talked about the most significant part of the case is the effort to impose Stowers' Law Bill on the carrier.

2915
03:35:22,890 --> 03:35:28,270
I have a letter with me where an injury occurred, let's say, on day one.

2916
03:35:29,290 --> 03:35:36,010
I get a stowers letter on day 10 with a demand that I settle the case on day 15.

2917
03:35:36,510 --> 03:35:37,930
There is no case file.

2918
03:35:38,090 --> 03:35:38,930
This is just a claim.

2919
03:35:39,950 --> 03:35:41,690
So, yeah, I face that today.

2920
03:35:41,910 --> 03:35:42,850
I face that all the time.

2921
03:35:42,950 --> 03:35:45,810
We are seeing in our business, on my side of the business,

2922
03:35:46,010 --> 03:35:51,450
the trend used to be that the settlement offer from the plaintiff was extended

2923
03:35:51,450 --> 03:35:55,730
did after settlement, after all the discovery was done?

2924
03:35:55,990 --> 03:35:57,750
Well, are you saying that because it's unfair to you,

2925
03:35:57,850 --> 03:35:58,950
then to make things even?

2926
03:35:59,130 --> 03:36:01,250
Even place that will make it unfair to them, too,

2927
03:36:01,290 --> 03:36:01,690
in the beginning?

2928
03:36:02,570 --> 03:36:03,990
My question really is an honest.

2929
03:36:04,830 --> 03:36:07,390
Is that, should we make it right from the very beginning,

2930
03:36:07,910 --> 03:36:09,790
or should we wait till after discovery

2931
03:36:09,790 --> 03:36:13,850
and say after a certain point in the discovery process,

2932
03:36:16,150 --> 03:36:20,050
then when the plaintiff can make a reasonable judgment?

2933
03:36:20,250 --> 03:36:20,330
Sure.

2934
03:36:20,330 --> 03:36:24,050
I think it's fair as they could, it cuts both ways.

2935
03:36:24,070 --> 03:36:26,450
That's probably my best answer for you.

2936
03:36:26,990 --> 03:36:30,450
There might be a case where the plaintiff could argue,

2937
03:36:30,830 --> 03:36:33,110
the vast majority of cases, yeah, I think it's fine.

2938
03:36:33,310 --> 03:36:34,970
They ought to have the data, they ought to know,

2939
03:36:35,090 --> 03:36:36,550
they ought to have their experts lined up

2940
03:36:36,550 --> 03:36:37,550
and it ought to be fine.

2941
03:36:38,070 --> 03:36:40,670
Now, they can argue, well, somebody walked in my door

2942
03:36:40,670 --> 03:36:43,070
the day before limitations and I don't really know.

2943
03:36:43,490 --> 03:36:46,190
And I can't say that that couldn't happen.

2944
03:36:46,490 --> 03:36:49,710
But on the other hand, there can be cases

2945
03:36:49,710 --> 03:36:56,030
where it's fairly clear early on, I know, I can look at it as very clear and I make an

2946
03:36:56,030 --> 03:37:00,790
offer early on and they're holding out for something that's not really possible and that's

2947
03:37:00,790 --> 03:37:02,770
not really fair to my side of the fence either.

2948
03:37:03,610 --> 03:37:08,590
And so, in the vast majority of cases, yeah, I think it's fine.

2949
03:37:08,910 --> 03:37:14,690
In some cases, it probably might not be and it probably is not depending on those smaller

2950
03:37:14,690 --> 03:37:15,690
I don't understand either way.

2951
03:37:17,090 --> 03:37:18,590
One other area I want to cover.

2952
03:37:19,550 --> 03:37:20,890
Let's go to the 250 cap.

2953
03:37:25,080 --> 03:37:28,580
When we passed the school finance bill ten years ago here in 93,

2954
03:37:29,620 --> 03:37:30,860
I'm trying to find somebody who was here.

2955
03:37:31,960 --> 03:37:32,940
Well, you're here.

2956
03:37:35,900 --> 03:37:41,560
But we defined what a rich school district was on the property wealth.

2957
03:37:41,780 --> 03:37:43,380
And it was like $180,000 or so.

2958
03:37:44,200 --> 03:37:49,560
At that time, I proposed that we tie that to the CPI, so that would go because realizing

2959
03:37:49,560 --> 03:37:52,340
that inflation would just push – we didn't do that.

2960
03:37:52,760 --> 03:37:54,540
But ever since then, we come back every session.

2961
03:37:54,920 --> 03:37:55,600
What is it now?

2962
03:37:55,740 --> 03:37:55,900
210?

2963
03:37:56,340 --> 03:38:00,880
We have to keep bumping it back up every time we come to session in order to be fair

2964
03:38:00,880 --> 03:38:01,540
to the school districts.

2965
03:38:02,420 --> 03:38:03,940
So my question is – so let's go back.

2966
03:38:05,480 --> 03:38:09,480
We keep talking about – you know, Phil's brought up and condemned about how this is

2967
03:38:09,480 --> 03:38:10,860
a policy decision on the 250.

2968
03:38:10,860 --> 03:38:14,180
And you said you agree with that sentiment, I do too.

2969
03:38:15,360 --> 03:38:19,860
But my question is this, the 250 coupling did that in 75?

2970
03:38:21,960 --> 03:38:25,820
What's the 250 worth in 1975 and today's dollars?

2971
03:38:26,700 --> 03:38:30,520
You know, I don't know. I've heard somebody say that it's over five.

2972
03:38:30,740 --> 03:38:34,140
It would have been over five, but I don't know. It's as soon as it is.

2973
03:38:34,340 --> 03:38:38,060
I guess my question is, if we're deciding as a policy what it's worth,

2974
03:38:38,720 --> 03:38:47,560
Are we deciding as a policy that it's worth $250,000 or are we deciding it's worth $250,000

2975
03:38:47,560 --> 03:38:54,380
today and an unknown lesser amount every year thereafter forever?

2976
03:38:56,060 --> 03:39:00,800
And so you see one loan, should we tie the $250,000 to the CPI, like I think we should

2977
03:39:00,800 --> 03:39:02,860
have done with the school finance bill.

2978
03:39:05,360 --> 03:39:09,840
And if we do that, do we still accomplish between those purposes of this bill?

2979
03:39:10,040 --> 03:39:10,660
Which I agree with you.

2980
03:39:10,900 --> 03:39:11,060
Sure.

2981
03:39:12,440 --> 03:39:15,740
I really think there's two purposes for the cap in the first place.

2982
03:39:16,620 --> 03:39:23,240
I think one purpose is to try to do, as you say, and to find out what's a reasonable compensation.

2983
03:39:23,520 --> 03:39:24,300
I think that's true.

2984
03:39:24,300 --> 03:39:33,140
I think it's also true though that a purpose of this is to try to determine what the system,

2985
03:39:33,380 --> 03:39:35,260
essentially what the system can stand.

2986
03:39:36,140 --> 03:39:39,720
You're going to compensate people for all their economics as it is.

2987
03:39:40,460 --> 03:39:45,480
This threat of a non-economic problem is causing problems everywhere else.

2988
03:39:45,700 --> 03:39:53,220
So how high can you go and still make the system work if you accept a proposition

2989
03:39:53,220 --> 03:39:55,080
that the system is not working today.

2990
03:39:55,820 --> 03:39:57,140
And so I really think there's not one.

2991
03:39:57,260 --> 03:39:58,420
I think there's a two-fold purpose.

2992
03:39:58,600 --> 03:40:02,360
Now, the data is, the most, I can see,

2993
03:40:02,400 --> 03:40:06,260
and the most reliable data that we have is not these studies

2994
03:40:06,260 --> 03:40:08,400
which are wonderful, and I love this item.

2995
03:40:09,000 --> 03:40:11,040
But the most reliable data we have is California.

2996
03:40:11,780 --> 03:40:13,020
It has, in fact, work.

2997
03:40:14,080 --> 03:40:14,800
It just has.

2998
03:40:15,060 --> 03:40:17,260
I mean, people can argue otherwise,

2999
03:40:17,400 --> 03:40:19,480
but the data is that it's work.

3000
03:40:19,480 --> 03:40:25,900
So if you impose that, you do the study commission as the chairman has put in the bill.

3001
03:40:27,100 --> 03:40:30,560
You let things settle down because it will take a while to do that.

3002
03:40:31,620 --> 03:40:37,240
And if you go and you let things settle out, and if that happens and you say, you know,

3003
03:40:39,340 --> 03:40:46,940
this is too much, we've done better than we meant to do, then I think you can fix that.

3004
03:40:46,940 --> 03:40:58,800
You know, Louisiana, for example, one of our problems in trying to figure out what's a reasonable thing to propose is what that number ought to be.

3005
03:40:59,080 --> 03:41:03,020
And there are some states in Louisiana as an example that's a lower cap.

3006
03:41:04,040 --> 03:41:08,240
Well, they're toward systems, you know, from the standpoint of the problems where discussion is great.

3007
03:41:09,020 --> 03:41:10,220
They don't have that problem.

3008
03:41:11,320 --> 03:41:15,680
But it might be a more stringent solution than we need here.

3009
03:41:16,220 --> 03:41:22,040
So my proposal, my suggestion to you I think would be, let's do this, study it.

3010
03:41:24,150 --> 03:41:26,950
If it's right, like it was right in California, then great.

3011
03:41:27,950 --> 03:41:32,510
If it's too tough or if it needs to be indexed, you can always go back and do that.

3012
03:41:34,010 --> 03:41:42,970
But to start at a place where the data that says this is the problem says won't fix it,

3013
03:41:42,970 --> 03:41:50,450
It seems to me to be taking less than a full step and you all get the results you want.

3014
03:41:50,890 --> 03:41:55,850
I guess when Phil says, let's look at this from a policy perspective,

3015
03:41:56,510 --> 03:41:59,370
maybe I'll look at it from, I divide that into two.

3016
03:41:59,930 --> 03:42:03,410
And one is, what is the policy that we're going to adopt as a state

3017
03:42:04,670 --> 03:42:10,450
to provide adequate and affordable health care to our citizens?

3018
03:42:11,710 --> 03:42:16,490
But the other part of the policy that I think we have to decide is, what's the fair amount?

3019
03:42:18,170 --> 03:42:24,410
And on that part, if you're deciding what's the fair amount, we don't know, just depends

3020
03:42:24,410 --> 03:42:28,590
on inflation, how much oil goes up and what the effect of the war is, what 250 is going

3021
03:42:28,590 --> 03:42:31,910
to be worth tomorrow or 10 years from now?

3022
03:42:33,550 --> 03:42:42,630
I think your struggle though perhaps is a kind of on a large level is indicative of the struggles

3023
03:42:42,630 --> 03:42:48,450
that we think juries have in a jury room in a particular case answering that very question.

3024
03:42:49,130 --> 03:42:52,450
And you're looking at a trillion factors that aren't talked about and that's what makes

3025
03:42:52,450 --> 03:42:55,790
it so unpredictable and that's why it's so important to get it tied up.

3026
03:42:56,290 --> 03:42:58,450
If we're talking about the CPI, it'd be very predictable.

3027
03:42:58,450 --> 03:43:02,270
But the amount we decide on with the amount it would be forever in a very real sense.

3028
03:43:03,070 --> 03:43:06,130
If we don't tie it to CPI, then it is entirely unpredictable.

3029
03:43:06,550 --> 03:43:12,410
It is intangible. And then you're going to where we are now with our juries where you just, you don't know.

3030
03:43:12,810 --> 03:43:18,130
You know, all the data that I've seen just says that a million dollar cap won't work.

3031
03:43:18,430 --> 03:43:20,230
We just won't have any effect at all.

3032
03:43:20,810 --> 03:43:23,150
So the wrongful death cap today is 1.4 million.

3033
03:43:23,350 --> 03:43:24,890
It started at $500,000.

3034
03:43:24,890 --> 03:43:28,690
It included everything except wages, including all damages,

3035
03:43:29,030 --> 03:43:31,030
medical expenses were accepted out.

3036
03:43:31,530 --> 03:43:34,150
It's tied to the CPI, and it's $1.4 million.

3037
03:43:35,110 --> 03:43:36,170
Thank you.

3038
03:43:39,060 --> 03:43:39,360
Patrick?

3039
03:43:42,660 --> 03:43:43,000
Ms. Howard?

3040
03:43:44,120 --> 03:43:46,640
A lot of us admit with every different group,

3041
03:43:47,100 --> 03:43:49,860
every different acronym from CLR to TAV to TMA,

3042
03:43:50,040 --> 03:43:51,360
it's good to have T-M-O-T.

3043
03:43:51,900 --> 03:43:56,840
The numbers that you talked about,

3044
03:43:56,840 --> 03:44:03,760
But 98% of the claims did not end up with indemnity payments, 72% of the lawsuits did

3045
03:44:03,760 --> 03:44:12,200
not, and a total of 85% of claims and lawsuits did not end up in a, that was for TMOT.

3046
03:44:12,440 --> 03:44:13,000
That's correct.

3047
03:44:13,800 --> 03:44:23,590
And you said of the 15% that do end up paying out that there's been an increase in 41%

3048
03:44:23,980 --> 03:44:25,650
of those souls since 95.

3049
03:44:26,130 --> 03:44:26,770
That's correct.

3050
03:44:26,770 --> 03:44:36,330
How much has your TMLT increased the 85%, how much of the 85% total increased paying

3051
03:44:36,330 --> 03:44:38,210
out over those same years?

3052
03:44:40,320 --> 03:44:42,660
If the 15% increased by 41%.

3053
03:44:43,040 --> 03:44:46,120
Well that's how much has the 85% escalated in cost?

3054
03:44:46,120 --> 03:44:47,640
Right, the donated cost.

3055
03:44:58,020 --> 03:44:58,280
Yes ma'am.

3056
03:45:00,000 --> 03:45:11,500
Lawsuit without indemnity has gone up 23 percent. It's now about, as I said, $3,200 a case if it goes

3057
03:45:11,500 --> 03:45:20,380
to a lawsuit. If you go to a claim without a lawsuit, like I say the cost is about $1,500,

3058
03:45:20,380 --> 03:45:24,360
Your dollars have pretty much stayed fairly constant.

3059
03:45:24,500 --> 03:45:27,160
So, $1,500 and $2,200 or $1,500 and $3,000.

3060
03:45:27,160 --> 03:45:27,700
That's right.

3061
03:45:27,920 --> 03:45:28,080
Okay.

3062
03:45:29,480 --> 03:45:30,680
But the...

3063
03:45:30,680 --> 03:45:31,100
$1,000.

3064
03:45:31,460 --> 03:45:32,080
$32,000?

3065
03:45:32,420 --> 03:45:32,720
Right.

3066
03:45:32,860 --> 03:45:33,620
$32,000.

3067
03:45:33,780 --> 03:45:34,620
That's exactly right.

3068
03:45:34,940 --> 03:45:35,300
Thank you.

3069
03:45:35,940 --> 03:45:45,220
And the lawsuit with indemnity has gone up some in cost about 12% in two years.

3070
03:45:45,460 --> 03:45:47,340
But that's not the big driver.

3071
03:45:47,340 --> 03:45:50,700
It's that 85% that-

3072
03:45:50,700 --> 03:45:53,300
So it's not the 15% hadn't gone up 41%?

3073
03:45:53,700 --> 03:45:56,540
Well, the severity has affected on the 15%.

3074
03:45:56,540 --> 03:45:57,540
That has gone up.

3075
03:45:57,760 --> 03:45:59,860
And you have more doctors being sued all the time.

3076
03:45:59,860 --> 03:46:03,920
By how many percent has that 15% gone up?

3077
03:46:04,840 --> 03:46:10,340
The 15% has gone up about 41% to 95%.

3078
03:46:11,240 --> 03:46:13,340
41% for the 15%.

3079
03:46:13,340 --> 03:46:16,560
And 23% for the 85%.

3080
03:46:17,440 --> 03:46:18,320
That's correct.

3081
03:46:20,590 --> 03:46:21,650
Okay. Thank you.

3082
03:46:21,930 --> 03:46:26,590
So assuming we get this bill passed, assuming the constitutional limit passes,

3083
03:46:27,130 --> 03:46:30,670
assuming the maximum occurs on the total form sign,

3084
03:46:31,470 --> 03:46:34,710
what percentage of your cost drivers do you think that would help?

3085
03:46:35,130 --> 03:46:37,370
How much would that reduce over, say, five years?

3086
03:46:37,650 --> 03:46:41,310
Same, let's go back to 95 over, same seven-day year period.

3087
03:46:42,030 --> 03:46:44,370
How much do you think that would reduce your costs?

3088
03:46:44,370 --> 03:46:48,490
That would certainly be conjecture on my part at this time.

3089
03:46:48,570 --> 03:46:52,590
But I will tell you that TMLT and APA have visited with the Commissioner of Insurance

3090
03:46:52,590 --> 03:46:58,630
and they are very welcome the chance to track claims after any legislation is passed

3091
03:46:59,230 --> 03:47:04,930
for the next two years to track every component of that payment of each of these pieces

3092
03:47:04,930 --> 03:47:09,050
so that those trends will be very easy to isolate.

3093
03:47:09,490 --> 03:47:12,930
They've both done close claim studies in the last year

3094
03:47:12,930 --> 03:47:16,090
And that information is with the Commissioner of Insurance.

3095
03:47:16,810 --> 03:47:22,870
So it'd be very advantageous to set up a tracking system

3096
03:47:22,870 --> 03:47:27,510
when the legislation says and give it time to tell them how you want it to report it

3097
03:47:27,510 --> 03:47:32,950
and so they can report each of those claims broken out into the cost the way that you'd

3098
03:47:32,950 --> 03:47:33,990
like to analyze it.

3099
03:47:34,110 --> 03:47:40,210
So assuming there's no constitutionality question in your mind about the constitutionality cap,

3100
03:47:40,210 --> 03:47:44,810
There's no idea that we can presume or guess or...

3101
03:47:44,810 --> 03:47:49,910
Let me say that both of the companies are here and are willing to testify after we have

3102
03:47:49,910 --> 03:47:50,370
a break.

3103
03:47:50,670 --> 03:47:53,950
Let me ask them if they want to put a number on that.

3104
03:47:54,630 --> 03:47:59,210
I guess it would be sort of two questions, how soon and how much.

3105
03:47:59,410 --> 03:47:59,510
Right.

3106
03:47:59,610 --> 03:48:00,670
And those will be...

3107
03:48:00,670 --> 03:48:01,910
Or how much over, how long.

3108
03:48:02,070 --> 03:48:03,390
And how much over, how long.

3109
03:48:03,510 --> 03:48:08,610
Those will be very difficult questions to look in a crystal ball because we're saying

3110
03:48:08,610 --> 03:48:16,590
if this, if everything passes, if and so there are a lot of assumptions built into that.

3111
03:48:16,750 --> 03:48:18,490
No doubt, difficult guess.

3112
03:48:18,890 --> 03:48:23,050
But it's a good question and one I think we'd all like to know the answer.

3113
03:48:23,910 --> 03:48:29,950
The companies are confident that with competition, with a changed legal environment in Texas,

3114
03:48:30,490 --> 03:48:34,730
that competition will make a great deal of difference in the marketplace just like it did

3115
03:48:34,730 --> 03:48:38,970
than after 95, which is what reforming saw companies come into the state.

3116
03:48:39,530 --> 03:48:44,890
And the competition is a great driver of the best prices.

3117
03:48:45,510 --> 03:48:53,430
In the case of TMLT, it's an interesting situation because it is a trust and if there's premium

3118
03:48:53,430 --> 03:48:59,330
in excess of what it needs to pay losses, it sends it back to the policy holders

3119
03:48:59,330 --> 03:49:01,450
and has done so since 95.

3120
03:49:01,450 --> 03:49:07,910
So there's no profit motive there, and they don't keep that surplus, but they don't pay dividends.

3121
03:49:08,470 --> 03:49:16,350
So it really is evidence that there is no incentive to charge a price more than is adequate by the trust.

3122
03:49:17,090 --> 03:49:23,790
Right. What we're talking about here is reducing the cost on the plaintiff's side by this tour form.

3123
03:49:25,170 --> 03:49:29,950
And if you take the 85% of cases that don't end up in indemnity, and you're talking about

3124
03:49:29,950 --> 03:49:32,630
1,500 per claim and 32,000 per suit,

3125
03:49:34,850 --> 03:49:36,910
and we're talking about reducing the cost, reducing

3126
03:49:36,910 --> 03:49:42,290
the number of frivolous lawsuits, and we agree most of us that that's our goal.

3127
03:49:42,490 --> 03:49:43,090
I certainly do.

3128
03:49:44,150 --> 03:49:49,170
What kind of ways can we reduce the cost on the defense side per claim by statute,

3129
03:49:49,670 --> 03:49:53,970
do you think, to help reduce that 23% increase since 95?

3130
03:49:53,970 --> 03:49:58,650
Is there anything we can do in this legislature on that issue to reduce your costs?

3131
03:50:01,180 --> 03:50:04,180
Some of the components of this bill go to that.

3132
03:50:04,540 --> 03:50:09,860
And some of the things that happened as Mike said a minute ago,

3133
03:50:10,140 --> 03:50:13,220
you'll have multiple descendants sued.

3134
03:50:13,960 --> 03:50:21,140
And instead of releasing the ones that, where it becomes evident that there's no liability,

3135
03:50:21,140 --> 03:50:28,220
because they keep them in suits, then the insurance company defends and continues to pay those defense costs.

3136
03:50:29,900 --> 03:50:35,480
This will help. Are there any other ways we can help besides the Chairman's good bill here?

3137
03:50:35,800 --> 03:50:42,920
That's a wonderful invitation. If you'll just give me a couple of minutes after the break to come back, I'd like to...

3138
03:50:42,920 --> 03:50:44,960
I'd like to visit you properly or whichever way.

3139
03:50:44,980 --> 03:50:46,020
Sure. Thank you for that opportunity.

3140
03:50:46,020 --> 03:50:49,740
We had, I recently had the opportunity to have about 25 doctors from my district come

3141
03:50:49,740 --> 03:50:56,580
and talk to me about their increases in medical ability rates and it's a crisis in my district

3142
03:50:56,580 --> 03:50:57,300
and the state.

3143
03:50:58,480 --> 03:51:04,520
And this goes back to that question I asked before, if this was all, if our goals here

3144
03:51:04,520 --> 03:51:08,140
were all accomplished, the Constitution and the past, how long do you think it would

3145
03:51:08,140 --> 03:51:12,580
take to see relief in those rates for our doctors in District 45 or across the state?

3146
03:51:13,680 --> 03:51:14,960
I know that's conjecture.

3147
03:51:14,960 --> 03:51:19,400
But we need to go with these long tail claims.

3148
03:51:19,780 --> 03:51:24,880
You have to go out until that claim is resolved and go back to the policy year that it arose.

3149
03:51:25,100 --> 03:51:27,520
And sometimes that takes four or five years to go back.

3150
03:51:28,160 --> 03:51:33,240
But I believe that I have heard testimony that stabilization of rates,

3151
03:51:33,760 --> 03:51:36,880
at least stopping the runaway escalation.

3152
03:51:37,320 --> 03:51:38,660
Testimony from who?

3153
03:51:39,680 --> 03:51:41,900
Testimony from your team at the year.

3154
03:51:41,900 --> 03:51:50,240
So from Commissioner Montemay or behind the stabilization would be one of the first steps

3155
03:51:50,240 --> 03:51:54,560
and that's happened in other states when there have been some of these reforms.

3156
03:51:55,700 --> 03:52:04,300
If we did this and I understand that this is all a lot of conjecture and a lot of maybes

3157
03:52:04,300 --> 03:52:11,500
and certainly first step to Chairman's Bill, what kind of guarantee would we have for

3158
03:52:11,500 --> 03:52:16,640
for the doctors in my district or each of our districts that those rights would be reduced?

3159
03:52:18,340 --> 03:52:25,540
Well, insurance companies are risk transfer mechanisms that I don't know if there's any

3160
03:52:25,540 --> 03:52:27,180
guarantee about the future.

3161
03:52:27,760 --> 03:52:31,860
I guess none of us would have expected some of the things that happened in the last

3162
03:52:31,860 --> 03:52:32,460
few years.

3163
03:52:32,680 --> 03:52:38,020
So it's very difficult to look that far forward with events that we can't measure.

3164
03:52:38,020 --> 03:52:41,700
It's the predictability that makes insurance measurable.

3165
03:52:42,160 --> 03:52:47,940
And the more you can anticipate future cost, then the better you're going to be.

3166
03:52:48,280 --> 03:52:49,900
Right. And this bill would help in that regard.

3167
03:52:50,200 --> 03:52:51,400
It would help in that regard.

3168
03:52:51,500 --> 03:52:56,660
But there's no way to ever quantify a guest or guarantee or speculate or conjecture or anything.

3169
03:52:57,020 --> 03:52:59,360
I wouldn't be the one that wanted to do that.

3170
03:52:59,660 --> 03:53:02,940
Would the witnesses later on be able to do that?

3171
03:53:02,940 --> 03:53:08,860
I didn't ask them, but I believe that you're asking something that requires far beyond actuarial

3172
03:53:08,860 --> 03:53:09,560
experience.

3173
03:53:09,900 --> 03:53:15,180
You're asking to open up something that is, I know it's all looking for answers and we

3174
03:53:15,180 --> 03:53:20,540
would all like to be confident that a policy made would be effective.

3175
03:53:20,840 --> 03:53:27,400
And that certainly the desire of the companies would like to be able to reduce the rate.

3176
03:53:28,760 --> 03:53:35,360
because it does not, if they're cost or escalate faster than the rate or even staying even,

3177
03:53:36,040 --> 03:53:41,020
it's not a business that's satisfying to them.

3178
03:53:41,560 --> 03:53:48,400
Particularly, when you have a self-insured group, they really want to return premium to their members,

3179
03:53:48,700 --> 03:53:51,460
and they're working very hard to do that.

3180
03:53:51,780 --> 03:53:53,700
Thank you for your answers, Mr. Chair.

3181
03:53:54,280 --> 03:53:55,020
Mr. Davis?

3182
03:53:56,540 --> 03:53:57,560
Thank you Mr. Chairman.

3183
03:53:57,720 --> 03:54:03,320
I wanted to ask a question relative to the portion of the bill where it talks about the settlement.

3184
03:54:04,400 --> 03:54:07,460
And one side, the plaintiff plays a piece.

3185
03:54:08,120 --> 03:54:14,480
Would you think it makes sense that both are put to that same test if the defendant loses the case,

3186
03:54:14,600 --> 03:54:16,980
to do me all to pay the legal fees accordingly?

3187
03:54:17,520 --> 03:54:17,880
Oh ma'am.

3188
03:54:18,380 --> 03:54:18,700
Okay.

3189
03:54:18,840 --> 03:54:21,160
Tell me why it's different from one versus the other.

3190
03:54:21,420 --> 03:54:22,000
Two reasons.

3191
03:54:22,280 --> 03:54:22,420
Okay.

3192
03:54:22,420 --> 03:54:25,380
One, the defense needs no more pressure.

3193
03:54:26,600 --> 03:54:26,960
Excuse me?

3194
03:54:27,160 --> 03:54:30,040
The defense side needs no more pressure.

3195
03:54:30,260 --> 03:54:30,820
We need no more.

3196
03:54:31,240 --> 03:54:35,820
When you're a defendant, as explained last week, and you're my client,

3197
03:54:35,900 --> 03:54:37,800
and I tell you you're going to win an 8 out of 10,

3198
03:54:38,080 --> 03:54:40,440
you hear you're going to lose 2 out of 10,

3199
03:54:41,540 --> 03:54:44,940
and that the verdict or judgment is going to be more than your policy

3200
03:54:44,940 --> 03:54:48,340
and that you're at risk for all your non-exempt assets.

3201
03:54:48,340 --> 03:54:55,160
You don't need any more pressure to make the decision about consent.

3202
03:54:55,620 --> 03:55:02,200
The insurance company that ensures you is looking at a case they ought to win and they want to try.

3203
03:55:02,760 --> 03:55:09,620
But because of that excess risk, it forces them to try cases and to settle cases they ought to try

3204
03:55:09,620 --> 03:55:15,520
or to pay a premium to settle cases and to put an additional piece of pressure on them

3205
03:55:15,520 --> 03:55:20,700
beyond what is already there will not help the problem in any way.

3206
03:55:21,020 --> 03:55:21,840
Second answer.

3207
03:55:25,920 --> 03:55:33,660
There is a gross disparity in a case like you're describing between the fee that I will get

3208
03:55:34,180 --> 03:55:36,400
and the fee that the plaintiff's lawyer will get.

3209
03:55:36,940 --> 03:55:40,340
Now, I just was doing a little math here, just as it so happens.

3210
03:55:40,700 --> 03:55:46,380
And I took the million dollar case, the million dollar award that was discussed earlier.

3211
03:55:47,180 --> 03:55:52,580
And I took it in both scenarios, the scenario where the expenses are paid first,

3212
03:55:53,120 --> 03:55:56,780
and the scenario where the expenses are paid after the fee is paid.

3213
03:55:58,700 --> 03:56:08,420
And not to go through all the math with you, but the worst appliance council does is $400,000.

3214
03:56:09,300 --> 03:56:17,500
So my exposure, if the losers pay the defense, the defendant's exposure for that is $400,000.

3215
03:56:18,380 --> 03:56:26,500
On my best day, bill in 24 hours a day is Mr. Hampton implied in 25 if I can get away with it in a given day.

3216
03:56:29,340 --> 03:56:35,420
$120,000 is what I will charge my entire firm.

3217
03:56:36,240 --> 03:56:38,720
You didn't build enough days if you did, but you did.

3218
03:56:38,880 --> 03:56:44,200
I keep looking for days today, you know, but it's been interesting because as I have talked

3219
03:56:44,200 --> 03:56:54,520
to members of the committee, especially those who are lawyers, my rate for TMLT, for example,

3220
03:56:54,700 --> 03:56:59,640
is not the 375 or 400 that was testified to, it's 150 an hour.

3221
03:57:00,300 --> 03:57:03,700
I've had one rate increase in 17 years.

3222
03:57:03,700 --> 03:57:05,260
But did you agree to that rate?

3223
03:57:05,740 --> 03:57:06,980
I agree to it every day.

3224
03:57:06,980 --> 03:57:10,100
Okay, and so fundamentally you decided that you're going

3225
03:57:10,100 --> 03:57:11,740
to sell your services for that amount.

3226
03:57:12,220 --> 03:57:15,140
And you could probably sell them for more, but you decided

3227
03:57:15,140 --> 03:57:17,420
that that's what you're going to sell them for, right?

3228
03:57:17,480 --> 03:57:18,140
No, ma'am.

3229
03:57:18,280 --> 03:57:20,460
If I were to do medical malpractice defense work.

3230
03:57:21,300 --> 03:57:22,820
No, but you don't have to just do that.

3231
03:57:24,280 --> 03:57:26,600
If somebody else comes knocking on my door for a different

3232
03:57:26,600 --> 03:57:27,760
right, I'm going to start talking to them.

3233
03:57:27,760 --> 03:57:30,100
Okay, so you'll sell it for different rates based

3234
03:57:30,100 --> 03:57:32,420
on what you can do, but you've decided you'll take

3235
03:57:32,420 --> 03:57:34,660
that as a fair rate for that work that you do for them.

3236
03:57:34,780 --> 03:57:37,380
You've made that decision, otherwise you could do all the work.

3237
03:57:37,560 --> 03:57:37,920
Is that correct?

3238
03:57:38,260 --> 03:57:40,720
It's sure true enough that I agree to take that rate.

3239
03:57:41,520 --> 03:57:41,980
That's true.

3240
03:57:42,360 --> 03:57:44,840
And in answer to your question that I believe you asked

3241
03:57:44,840 --> 03:57:49,280
about the settlement offer, the proposal to tax it both ways means

3242
03:57:49,280 --> 03:57:55,520
that if the plaintiff loses, they're going to pay my 120 or less

3243
03:57:55,520 --> 03:57:58,660
than that because of that offer will come some time later in the process.

3244
03:57:59,260 --> 03:58:01,100
I'm going to pay their 400,000.

3245
03:58:01,580 --> 03:58:07,400
What that does is put more pressure and creates an additional burden on the disability in a

3246
03:58:07,400 --> 03:58:07,640
case.

3247
03:58:07,780 --> 03:58:09,020
And no, I don't think that's fair.

3248
03:58:09,100 --> 03:58:14,420
I guess I'm having a hard time hearing that what's good for you, what's good for me is

3249
03:58:14,420 --> 03:58:15,140
not good for you.

3250
03:58:15,240 --> 03:58:19,460
And I understand that one charges a higher fee than the other, but I also understand

3251
03:58:19,460 --> 03:58:25,100
that that decision we make is just kind of like a lawyer who works for a civil rights

3252
03:58:25,100 --> 03:58:25,760
organization.

3253
03:58:25,880 --> 03:58:27,120
They make $25 a month.

3254
03:58:27,260 --> 03:58:28,540
I mean, it's a choice we make.

3255
03:58:28,540 --> 03:58:35,720
but I just fundamentally have a problem with me having to be told that something's good for me,

3256
03:58:35,800 --> 03:58:39,400
it's not good for both of us, so I was concerned about that.

3257
03:58:39,820 --> 03:58:45,580
The other part I want to ask as it relates to kind of going back to what Patrick was talking about,

3258
03:58:45,640 --> 03:58:56,200
and this has to do with how we determine if the legislature can decide that we need to have a cap on the rate,

3259
03:58:57,080 --> 03:59:00,560
Why do you believe we shouldn't ever decide when we get a rate reduction?

3260
03:59:01,640 --> 03:59:07,980
I mean, I'm trying to understand how we can arbitrarily, as a legislator,

3261
03:59:08,220 --> 03:59:13,720
decide how to select the industry, in this particular case,

3262
03:59:13,800 --> 03:59:17,200
we've decided that lawyers are going to be the balance and act for insurance rates.

3263
03:59:18,540 --> 03:59:21,340
But we can't define when the insurance rates are going to come down.

3264
03:59:21,880 --> 03:59:24,060
I mean, what factors do we need to add in?

3265
03:59:24,060 --> 03:59:29,160
because it would seem to me reasonable, people would expect that if you give something, you

3266
03:59:29,160 --> 03:59:29,960
ought to get something.

3267
03:59:30,820 --> 03:59:37,740
And if we're giving up access to courts and if we're giving up the opportunity for

3268
03:59:37,740 --> 03:59:41,320
juries to make decisions, and because we're basically taking that away from the public,

3269
03:59:41,440 --> 03:59:45,860
we're not going to have a jury, we're going to have the legislature for doing it.

3270
03:59:46,260 --> 03:59:50,160
If we can make that determination, why do you think we shouldn't be able to put

3271
03:59:50,160 --> 03:59:56,220
a determination that in a year we ought to see a rollback, or two years we ought to see

3272
03:59:56,220 --> 03:59:56,780
a rollback.

3273
03:59:57,340 --> 03:59:59,980
And it might be that you have some cases that might be.

3274
04:00:00,000 --> 04:00:05,600
Extend four years because those cases are already pending, but today, for example, why wouldn't

3275
04:00:05,600 --> 04:00:10,520
we say as of this day there's a rollback? I mean, why wouldn't that be part of the negotiation?

3276
04:00:10,920 --> 04:00:13,080
So when we give something, we get something.

3277
04:00:14,220 --> 04:00:19,920
To artificially roll back a rate until you see that the underlying costs are being reduced

3278
04:00:19,920 --> 04:00:25,360
and the extent that they're being reduced is going to put a stress on the solvency

3279
04:00:25,360 --> 04:00:29,800
of companies. And when I talked earlier about the three legs of regulation where

3280
04:00:29,800 --> 04:00:34,860
You need affordability, availability, that other leg of dependability or solvency.

3281
04:00:35,900 --> 04:00:41,260
If the companies are leading the state now because they don't see this as a viable insurance

3282
04:00:41,260 --> 04:00:47,260
marketplace, further rolling back to rate will not increase competition and it will

3283
04:00:47,260 --> 04:00:51,520
really affect the solvency of the companies that are here.

3284
04:00:52,160 --> 04:00:57,860
There's an insurance code that has an important provision in it and a very good agency

3285
04:00:57,860 --> 04:01:03,780
here in the state that regulates insurance, the Texas Department of Insurance and my old

3286
04:01:03,780 --> 04:01:09,280
home agency but you've had Commissioner Bomer and you have Commissioner Montemay are looking

3287
04:01:09,280 --> 04:01:14,100
closely at insurance companies for this provision there that companies cannot charge rates that

3288
04:01:14,100 --> 04:01:18,740
are excessive and fairly discriminatory and they have to be adequate.

3289
04:01:19,180 --> 04:01:24,080
There are already those provisions in the insurance code dealing with rates of insurance

3290
04:01:24,080 --> 04:01:29,720
that an agency that's charged with that responsibility.

3291
04:01:29,880 --> 04:01:32,540
When you set rates, when you set rates as a company,

3292
04:01:32,780 --> 04:01:36,080
do you include your company's losses, insurance companies?

3293
04:01:36,360 --> 04:01:38,260
Do they include their investment losses with regards

3294
04:01:38,260 --> 04:01:39,400
to how they set their rates?

3295
04:01:39,500 --> 04:01:41,940
Do they include that loss in setting any rates?

3296
04:01:43,020 --> 04:01:47,980
TMLT has not built any recoupment of any investment loss

3297
04:01:47,980 --> 04:01:53,140
into their rates, but there's been very little,

3298
04:01:53,140 --> 04:01:58,320
and that's been in the bond area, but that would not have significantly affected rates

3299
04:01:58,320 --> 04:02:00,460
had they tried to go back in recoups.

3300
04:02:00,520 --> 04:02:07,480
Are you unique in that regard, is TMLT unique in that regard in terms of building in your

3301
04:02:08,280 --> 04:02:15,980
rates of recouping of expenses or investment losses that unique to your industry, to your

3302
04:02:15,980 --> 04:02:16,580
company?

3303
04:02:16,580 --> 04:02:24,100
Companies all, as I remember from setting rates at the Texas Department of Insurance called

3304
04:02:24,100 --> 04:02:29,080
the State Board of Insurance, they look at all their costs and discount it by what they

3305
04:02:29,080 --> 04:02:31,740
expect to make on investment income.

3306
04:02:32,420 --> 04:02:37,380
But that investment income looking into the future is always speculative.

3307
04:02:38,360 --> 04:02:43,440
A lot of actuaries come and talk about what investment income is going to be.

3308
04:02:44,180 --> 04:02:47,160
It would be a matter of then looking

3309
04:02:47,160 --> 04:02:48,720
and instead of investment income,

3310
04:02:48,960 --> 04:02:54,500
what's happened in the last few years in the stocks could be

3311
04:02:54,500 --> 04:02:56,800
very devastating if companies were allowed

3312
04:02:57,160 --> 04:02:59,980
to invest their assets in a great deal of stocks.

3313
04:03:01,020 --> 04:03:03,780
Wisely, the Department of Insurance limits those

3314
04:03:03,780 --> 04:03:09,260
investments in stocks to 12%, but TMLTs is far below that.

3315
04:03:09,260 --> 04:03:16,540
So that is not a major portion of the investment of their premium dollar.

3316
04:03:16,880 --> 04:03:18,360
But let me ask you something.

3317
04:03:18,580 --> 04:03:20,860
Some of the companies have had significant losses.

3318
04:03:21,820 --> 04:03:27,520
And do you believe that those losses should be shifted to the doctors for paying the premiums?

3319
04:03:27,580 --> 04:03:30,280
Those losses should be shifted into premiums?

3320
04:03:30,860 --> 04:03:38,080
I don't believe that the companies that are writing malpractice insurance in the state of Texas are doing that to speak

3321
04:03:38,080 --> 04:03:43,340
to that defensively though, I guess we can certainly get that information together

3322
04:03:43,340 --> 04:03:46,220
and talk about those losses than if they were.

3323
04:03:46,340 --> 04:03:50,000
I wouldn't want to answer for any companies that I'm not familiar with.

3324
04:03:50,060 --> 04:03:50,700
I appreciate it.

3325
04:03:50,780 --> 04:03:53,220
I just wanted to know what kind of was the industry practice.

3326
04:03:53,860 --> 04:03:56,540
And to the extent you can get that, that would be helpful because part

3327
04:03:56,540 --> 04:04:00,840
of what we've been wrestling with with insurance in general is understanding all

3328
04:04:00,840 --> 04:04:04,780
of the things that go into the formula to determine how they set rates.

3329
04:04:04,780 --> 04:04:09,320
And one of the bills we just passed is, you know, it's a disclosure bill because there's

3330
04:04:09,320 --> 04:04:13,540
lots of information and insurance commissions saying, in fact, he did not have access to

3331
04:04:13,540 --> 04:04:13,700
it.

3332
04:04:13,720 --> 04:04:17,900
So he's not able to tell what drives the policy of the policies up.

3333
04:04:17,960 --> 04:04:21,520
And I'm just wondering if that's the same thing that happens in this regard, too,

3334
04:04:21,560 --> 04:04:27,060
because that seems to be what's kind of lost in this conversation is what you see the

3335
04:04:27,060 --> 04:04:35,300
The factors are beyond just one legal entity, one entity that you interact with.

3336
04:04:36,120 --> 04:04:40,460
Because of antitrust, the companies don't share that information, but both the Department

3337
04:04:40,460 --> 04:04:46,160
of Insurance and the National Association of Insurance Commissioners collect a great

3338
04:04:46,160 --> 04:04:48,040
deal of cumulative information.

3339
04:04:49,180 --> 04:04:55,180
But if there's any way we can assist you in getting to that information, I would

3340
04:04:55,180 --> 04:04:55,880
be happy to.

3341
04:04:55,880 --> 04:04:57,420
Thank you.

3342
04:04:57,500 --> 04:04:58,240
You got it?

3343
04:05:03,420 --> 04:05:05,600
Michael, do you have the bill?

3344
04:05:06,300 --> 04:05:06,560
Yes, sir.

3345
04:05:06,680 --> 04:05:07,380
You've been over it?

3346
04:05:07,780 --> 04:05:08,740
A couple of times, yes, sir.

3347
04:05:09,000 --> 04:05:13,700
Let me point you to page nine of the bill.

3348
04:05:26,770 --> 04:05:32,970
I've got some real questions here regarding basically line one through five,

3349
04:05:33,790 --> 04:05:39,450
which is what was passed last time the legislature attempted to do.

3350
04:05:40,470 --> 04:05:45,810
Essentially what was passed last time was like you're trying to do caps, is that correct?

3351
04:05:45,990 --> 04:05:46,330
Yes sir.

3352
04:05:46,530 --> 04:05:47,950
With some changes in here.

3353
04:05:48,490 --> 04:05:55,030
Now the Supreme Court read that to me that because of the open court provision and everything

3354
04:05:55,030 --> 04:06:01,350
else they excluded a lot of things out of there but wrongful death was included saying

3355
04:06:01,350 --> 04:06:04,950
that we're going to say this is the capital wrongful death, correct?

3356
04:06:05,350 --> 04:06:05,710
Yes sir.

3357
04:06:08,970 --> 04:06:16,570
We've added some words through this bill, the word all, before damages, including punitive

3358
04:06:16,570 --> 04:06:19,630
damages was added, and perclaimment was added.

3359
04:06:20,070 --> 04:06:20,230
Yes, sir.

3360
04:06:21,050 --> 04:06:27,690
Has the Supreme Court or has somebody declared the last time that this was done that the

3361
04:06:27,690 --> 04:06:31,670
limit was on a per-defendant basis as per-claimant?

3362
04:06:31,910 --> 04:06:32,250
Yes, sir.

3363
04:06:32,470 --> 04:06:37,530
So today, on a wrongful death case, it is determined to be per-defendant.

3364
04:06:37,750 --> 04:06:37,990
Yes, sir.

3365
04:06:37,990 --> 04:06:42,730
So if you see 10 people, you're really at 11.4 or 11, yeah.

3366
04:06:43,350 --> 04:06:43,970
Whatever the math is.

3367
04:06:43,970 --> 04:06:44,690
Whatever the math is.

3368
04:06:44,710 --> 04:06:45,050
Yes, sir.

3369
04:06:46,070 --> 04:06:47,650
All right, so I went to law school.

3370
04:06:49,450 --> 04:06:52,940
So we're gonna change that today.

3371
04:06:54,580 --> 04:06:56,560
You know, if we pass this bill out,

3372
04:06:56,680 --> 04:06:59,640
it's gonna change that instead of being per defendant,

3373
04:06:59,700 --> 04:07:01,800
it's gonna be per claimant on a wrongful death case.

3374
04:07:02,580 --> 04:07:03,220
Yes, sir.

3375
04:07:03,280 --> 04:07:06,040
Well, I think we think you're gonna restore it

3376
04:07:06,040 --> 04:07:08,040
to what was originally intended to make it

3377
04:07:08,040 --> 04:07:09,820
on a procurement basis.

3378
04:07:10,220 --> 04:07:16,060
Well, and then that's another thing that I want to go into is if we pass what's here today,

3379
04:07:17,000 --> 04:07:23,380
are we passing a $500,000 ultimate cap on all damages?

3380
04:07:25,560 --> 04:07:26,760
Well, how do you read it?

3381
04:07:27,000 --> 04:07:31,800
What the Supreme Court has said is that this cap applies only to wrongful deaths.

3382
04:07:31,800 --> 04:07:52,420
And I understand that, but we're putting forward through HB-3 and through HR-3 or HR-3, we're putting forward all these things to change the Constitution and everything else.

3383
04:07:53,740 --> 04:07:59,260
I mean, I can say that it is not our intention to do anything with this other than make the

3384
04:07:59,260 --> 04:08:03,720
wrongful, the current existing wrongful death count, the, at least from our perspective.

3385
04:08:03,900 --> 04:08:04,740
Proclaim it instead of...

3386
04:08:04,740 --> 04:08:05,800
Proclaim it instead of...

3387
04:08:05,800 --> 04:08:06,000
Proclaim it instead of hurting it.

3388
04:08:06,140 --> 04:08:06,960
...and to include punitive.

3389
04:08:07,220 --> 04:08:07,460
Okay.

3390
04:08:07,780 --> 04:08:09,180
It may not be your intent.

3391
04:08:09,600 --> 04:08:09,960
Yes, sir.

3392
04:08:10,420 --> 04:08:17,060
But like we talked about earlier, unintended consequences, is that what we're doing when

3393
04:08:17,060 --> 04:08:17,400
we're here?

3394
04:08:17,860 --> 04:08:19,100
Well, I...

3395
04:08:19,620 --> 04:08:22,740
And I think it should be something we ought to be concerned about, shouldn't it?

3396
04:08:23,160 --> 04:08:27,880
Well, I certainly think we want to make sure we answer your question, yes or no.

3397
04:08:28,020 --> 04:08:35,200
I think our thought was if you have a $500,000 count now, even though it's indexed,

3398
04:08:38,160 --> 04:08:42,340
because we don't know whether the voters will or will not approve an amendment

3399
04:08:42,340 --> 04:08:44,740
assuming it passes the House and the Senate,

3400
04:08:45,340 --> 04:08:53,360
Then it would not make any sense to remove the only currently approved cap from the law.

3401
04:08:53,800 --> 04:08:56,540
Mike, here's my concern, is that we pass what's here.

3402
04:08:57,620 --> 04:09:02,600
And then in essence what we've done is, and unintentionally so from this committee and from the House floor,

3403
04:09:03,260 --> 04:09:08,220
is what we've done is set a $250,000 cap on non-economic damages, which I think we ought to do.

3404
04:09:09,160 --> 04:09:11,540
And set an ultimate cap of $500,000.

3405
04:09:12,360 --> 04:09:17,460
I certainly think if we need to then address the duration of concern because that's not

3406
04:09:17,460 --> 04:09:17,740
the end of the day.

3407
04:09:17,740 --> 04:09:18,800
And would you?

3408
04:09:19,000 --> 04:09:19,120
Sure.

3409
04:09:19,360 --> 04:09:20,920
Because we certainly need to do that.

3410
04:09:21,060 --> 04:09:28,340
And the other question I have is, are we rolling back a wrongful death situation to

3411
04:09:28,340 --> 04:09:30,900
$500,000 today as opposed to $1.4 million?

3412
04:09:32,900 --> 04:09:35,440
Again, that's not our intention so we can.

3413
04:09:35,860 --> 04:09:36,900
We can look at that and see.

3414
04:09:37,140 --> 04:09:37,400
Yes, sir.

3415
04:09:45,240 --> 04:09:49,780
And I'm not sure who to address this to, I don't know if that is that Mr. Hall, I'll

3416
04:09:49,780 --> 04:09:50,520
tell you first.

3417
04:09:50,960 --> 04:09:52,400
Okay, Ms. Howard.

3418
04:09:53,460 --> 04:10:01,120
But I don't hear anything mentioned about the economic or the non-economic damages

3419
04:10:01,120 --> 04:10:10,200
done to doctors who have to go through the process and 85% of the cases, there's

3420
04:10:10,200 --> 04:10:10,820
no indemnity.

3421
04:10:10,820 --> 04:10:16,040
Where is their relief from economic and non-economic damages?

3422
04:10:17,130 --> 04:10:22,080
It's clearly part of the hard to calculate cost.

3423
04:10:22,900 --> 04:10:28,140
There's a number of floating around that was looked at in the Senate of the cost of

3424
04:10:28,140 --> 04:10:30,540
privileged suits that are about a million dollars a day.

3425
04:10:30,960 --> 04:10:37,340
You can look at the hard cost of the 44-plus million on defending these 85% claims in

3426
04:10:37,340 --> 04:10:45,460
but, you know, a doctor has a number, a hospital has a number, down days, trial will be two

3427
04:10:45,460 --> 04:10:49,660
plus weeks where they're out of practice, practice is shut down, they're not otherwise

3428
04:10:49,660 --> 04:10:57,060
available for patients. There's all those costs. Because of that stour's demand that

3429
04:10:57,060 --> 04:11:03,800
the clients' lawyers routinely send, the law says that we can advise them as to

3430
04:11:03,800 --> 04:11:05,940
a minute ago, we're supposed to go hire a personal lawyer.

3431
04:11:07,040 --> 04:11:08,980
There's costs associated with that.

3432
04:11:09,380 --> 04:11:12,780
So there are substantial other costs

3433
04:11:13,200 --> 04:11:18,660
that are uninsured costs that are caused

3434
04:11:18,660 --> 04:11:20,120
because of the current situation.

3435
04:11:20,420 --> 04:11:20,600
Yes, ma'am.

3436
04:11:20,640 --> 04:11:21,980
And mental anguish.

3437
04:11:22,380 --> 04:11:22,700
Yes, ma'am.

3438
04:11:23,300 --> 04:11:23,740
OK.

3439
04:11:24,180 --> 04:11:26,880
Could you mention the defensive medicine?

3440
04:11:27,420 --> 04:11:28,560
Could you elaborate a little bit

3441
04:11:28,560 --> 04:11:30,760
on the cost of defensive medicine?

3442
04:11:31,220 --> 04:11:31,760
Yes, ma'am.

3443
04:11:31,760 --> 04:11:35,140
And in fact, I can refer the committee to a study.

3444
04:11:43,990 --> 04:11:47,010
While you're doing that, I'll mention two other consequences.

3445
04:11:47,350 --> 04:11:53,850
When these claims come into the insurance company, they have to report them to a national database

3446
04:11:53,850 --> 04:11:57,090
and they report them to the board of medical examiners.

3447
04:11:57,490 --> 04:12:05,130
So even if they're resolved without any payment, they are being logged under that position.

3448
04:12:05,590 --> 04:12:09,390
And I guess the reason I am so sensitive to this is we have a small company.

3449
04:12:09,390 --> 04:12:15,070
It's not medical malpractice, but we've only been sued once, but to win that city cost

3450
04:12:15,070 --> 04:12:21,210
our small company $100,000 plus the mental stress that my husband and everybody, all the

3451
04:12:21,210 --> 04:12:23,210
other employees went through to deal with it.

3452
04:12:23,470 --> 04:12:23,770
Right.

3453
04:12:24,990 --> 04:12:32,850
The concept of defensive medicine is that because of the risk of sued, because doctors

3454
04:12:32,850 --> 04:12:36,750
There's fear that they, and nurses are going to get through this.

3455
04:12:36,930 --> 04:12:44,510
They order unnecessary tests, so we're all involved with, you know, whatever those tests

3456
04:12:44,510 --> 04:12:48,810
may happen to be, and whatever the costs are associated with that.

3457
04:12:49,290 --> 04:12:53,810
And the study I was talking about was conducted by the Harris poll, and it's called Common

3458
04:12:53,810 --> 04:12:57,410
Good Fear Religation Study, The Impact on Medicine.

3459
04:12:57,410 --> 04:13:04,370
There's a similar study out in the Health and Human Services report that's out from July.

3460
04:13:05,090 --> 04:13:11,210
There's an additional study from the Congressional Budget Office, all of whom look at the effect of a cap

3461
04:13:11,210 --> 04:13:18,750
on reducing that fear of litigation and decreasing the cost of defensive medicine.

3462
04:13:19,430 --> 04:13:26,830
The Congressional Budget Office report estimates $12 billion savings over a 10-year period

3463
04:13:26,830 --> 04:13:35,100
if the fear of defensive medicine is relieved with a 250-couple, just now.

3464
04:13:36,520 --> 04:13:37,380
Ms. Sabers.

3465
04:13:38,460 --> 04:13:39,700
Thank you, Mr. Chairman.

3466
04:13:39,800 --> 04:13:41,720
I wanted to ask a follow-up, not a follow-up question.

3467
04:13:41,740 --> 04:13:43,580
I was just concerned about one issue.

3468
04:13:44,340 --> 04:13:47,980
In 93 and 90, I guess, two previous legislative sessions,

3469
04:13:48,220 --> 04:13:53,900
we passed court reform and we saw a drop in interest rates.

3470
04:13:54,000 --> 04:13:54,360
Is that correct?

3471
04:13:54,360 --> 04:13:59,640
We'll be able to realize any kind of reduction in rates from those reforms.

3472
04:14:00,040 --> 04:14:02,220
There was a man that had rolled back in 1995.

3473
04:14:02,420 --> 04:14:05,120
It's a lot to the regulated carriers.

3474
04:14:06,500 --> 04:14:09,820
And was that successful? Did that work? Or was it, I mean?

3475
04:14:10,040 --> 04:14:10,700
It was a disaster.

3476
04:14:11,140 --> 04:14:11,820
It was a disaster?

3477
04:14:12,060 --> 04:14:12,420
Yes, ma'am.

3478
04:14:13,080 --> 04:14:14,200
Tell me what was it.

3479
04:14:14,740 --> 04:14:16,380
Commissioner Montemay always testified to...

3480
04:14:17,380 --> 04:14:19,580
He told me it was great, so I won't hear about it.

3481
04:14:20,440 --> 04:14:25,960
He has testified that part of the problem that we have today is that the rollback was imposed

3482
04:14:25,960 --> 04:14:31,540
on now companies before the reforms, before we had a chance to see if the reforms would

3483
04:14:31,540 --> 04:14:37,960
take an effect or what the measure would be and then what's the supposed reforms,

3484
04:14:40,400 --> 04:14:45,900
what's the rollback that's gone, how to rescind it or sunset it or how does it work.

3485
04:14:46,400 --> 04:14:52,040
right shot up and Carey at least will tell you that a large part of the problem today

3486
04:14:52,040 --> 04:14:55,860
and on the right side is that they were playing catch-up.

3487
04:14:56,360 --> 04:14:59,720
Okay, but the statue, we passed it in the statue.

3488
04:15:00,000 --> 04:15:10,220
Constitution, right? Yes ma'am, in 95. In 93 did we do a constitution? No ma'am, but I'm not, I'm not, I

3489
04:15:10,220 --> 04:15:15,320
you'd have to remind me of the significance right now. I guess I'm trying to figure out why we do, why

3490
04:15:15,320 --> 04:15:19,780
in your mind we're doing this as a constitution, why we're doing HDR, putting this in a constitution.

3491
04:15:19,780 --> 04:15:30,000
Well, the court in Lucas, there's a division in the competition called Open Courts.

3492
04:15:31,080 --> 04:15:45,380
Open Courts has been interpreted in Texas for 150-plus years to say that if you're going to restrict access to the court in some way, that you have to give something back.

3493
04:15:45,380 --> 04:15:49,420
That giving and taking is generally referred to as the quid pro quo.

3494
04:15:50,660 --> 04:15:59,340
In 19, in the Lucas case, the court said that the quid pro quo that was contemplated by the cap was insufficient.

3495
04:16:00,540 --> 04:16:06,140
So if you pass the cap now and you don't pass and you don't protect it constitutionally,

3496
04:16:06,300 --> 04:16:10,840
then you don't know whether the cap is constitutional until the court tells you so.

3497
04:16:10,840 --> 04:16:16,400
So, we're trying to allow, we're trying to put it in the Constitution when I have an

3498
04:16:16,400 --> 04:16:19,400
afford to review the viability of it not being unconstitutional.

3499
04:16:20,000 --> 04:16:26,280
Well, my view on it, myself, is that it caps its policy question, and that what the court

3500
04:16:26,280 --> 04:16:30,840
said was that you don't have the ability to review a policy question, and I think

3501
04:16:30,840 --> 04:16:33,740
the purpose of the resolution is to give you that power.

3502
04:16:34,780 --> 04:16:35,220
Okay.

3503
04:16:35,460 --> 04:16:42,040
So, for us to put it in the Constitution, is that different than what we do most legislation

3504
04:16:42,660 --> 04:16:44,940
That's not how we typically do most legislation.

3505
04:16:45,260 --> 04:16:47,120
Why are we legislating now in the Constitution?

3506
04:16:47,780 --> 04:16:53,880
You have, with other legislation that has faced open courts concerns you and passed constitutional amendments.

3507
04:16:55,400 --> 04:16:57,280
There's a municipal...

3508
04:16:57,280 --> 04:17:00,520
One that we know that's been challenged before and not now.

3509
04:17:01,440 --> 04:17:04,620
When we had a cap before, it was not down. Is that correct?

3510
04:17:05,260 --> 04:17:07,200
No, as of why the common law causes a vaccine.

3511
04:17:07,200 --> 04:17:07,660
Yes, ma'am.

3512
04:17:07,680 --> 04:17:07,900
Okay.

3513
04:17:08,820 --> 04:17:12,120
And it was, I guess, proven to be unconstitutional.

3514
04:17:12,320 --> 04:17:12,720
Is that correct?

3515
04:17:13,280 --> 04:17:15,440
The court held as applied to common law.

3516
04:17:15,580 --> 04:17:16,860
It was unconstitutional, yes ma'am.

3517
04:17:17,340 --> 04:17:22,500
And now what we're going to do, rather than pass a law, we're going to go further now.

3518
04:17:22,680 --> 04:17:26,380
We're going to put it in the Constitution so that we don't have to worry about the

3519
04:17:26,380 --> 04:17:29,860
court looking at all the stuff that they looked at to determine whether or not it's

3520
04:17:29,860 --> 04:17:30,400
constitutional.

3521
04:17:31,260 --> 04:17:31,940
No, ma'am.

3522
04:17:32,020 --> 04:17:33,760
Does that mean we did that the effect it has?

3523
04:17:35,260 --> 04:17:42,660
The effect of the amendment would be to remove the policy question from the open course discussion.

3524
04:17:42,840 --> 04:17:44,640
Okay, but I can't, that's illegal.

3525
04:17:44,980 --> 04:17:46,480
Give me my answer to my question.

3526
04:17:46,740 --> 04:17:47,540
Does it have?

3527
04:17:47,860 --> 04:17:48,360
I'm not answering.

3528
04:17:48,740 --> 04:17:49,500
Okay, let me ask you.

3529
04:17:49,720 --> 04:17:49,880
Definitely.

3530
04:17:50,640 --> 04:18:02,260
Does this constitutional amendment have the effect of putting in constitution something that we know has been struck down has been unconstitutional to get around it so that we'd be constitutional with it?

3531
04:18:02,260 --> 04:18:04,180
Is that what we're trying to do?

3532
04:18:05,040 --> 04:18:08,380
You know, I don't want to dodge you, but it's not quite that simple.

3533
04:18:08,720 --> 04:18:13,080
What is the effect? Does it have that effect?

3534
04:18:13,720 --> 04:18:15,680
It is the constitutional amendment passes.

3535
04:18:16,660 --> 04:18:23,480
It is my belief that the court could not strike down the cap on the basis that it violated the open courts relationship.

3536
04:18:23,660 --> 04:18:25,260
So it has the effect of doing...

3537
04:18:26,020 --> 04:18:29,860
We're trying to get ahead of the court by putting it in the constitution. It has that effect.

3538
04:18:31,100 --> 04:18:34,640
because it has already been proven that the cap was unconstitutional.

3539
04:18:35,160 --> 04:18:38,220
And so to do so this way gets us beyond that.

3540
04:18:38,500 --> 04:18:41,080
And the court couldn't strike it down based on open records.

3541
04:18:41,680 --> 04:18:42,100
Is that correct?

3542
04:18:43,320 --> 04:18:44,200
Yes or no?

3543
04:18:44,660 --> 04:18:45,840
It's not quite yes or no.

3544
04:18:45,940 --> 04:18:46,420
I'm sorry.

3545
04:18:46,520 --> 04:18:47,140
I wish I could.

3546
04:18:47,360 --> 04:18:47,960
I want to.

3547
04:18:48,080 --> 04:18:48,540
Real bad.

3548
04:18:53,120 --> 04:18:56,380
What the court said, and to put it quick, well,

3549
04:18:56,420 --> 04:18:57,860
quote is a horse-strait.

3550
04:18:57,980 --> 04:18:58,780
It's on a car.

3551
04:18:59,640 --> 04:19:07,880
The court said that quid with that calf at that time, in that environment, with those people didn't work.

3552
04:19:09,020 --> 04:19:11,100
Now, this is a different court.

3553
04:19:11,420 --> 04:19:12,200
It's a different time.

3554
04:19:12,500 --> 04:19:15,040
It's a different, it's a more worse class.

3555
04:19:15,740 --> 04:19:17,080
And there's a different horse trade.

3556
04:19:17,400 --> 04:19:21,920
With the same, with the court today, we reached the same result with the Lucas Court weeks.

3557
04:19:22,580 --> 04:19:25,220
There's a healthy debate about that, and some say no.

3558
04:19:25,700 --> 04:19:27,660
So why are we doing a constitutional amendment?

3559
04:19:27,660 --> 04:19:28,700
Because you don't know.

3560
04:19:29,200 --> 04:19:33,100
So we're trying to presuppose that it might get knocked down and therefore we're putting

3561
04:19:33,100 --> 04:19:36,640
a safeguard in to protect it about putting it in the Constitution.

3562
04:19:36,980 --> 04:19:38,160
Yes, I agree with that.

3563
04:19:38,220 --> 04:19:38,520
Okay.

3564
04:19:38,920 --> 04:19:39,320
Absolutely.

3565
04:19:40,220 --> 04:19:41,520
Is that a question?

3566
04:19:42,220 --> 04:19:46,620
No, I just want to make sure we're clear to folks when we start talking about this

3567
04:19:46,620 --> 04:19:51,100
legislation that what we're doing there is we're beginning to legislate in the Constitution

3568
04:19:51,100 --> 04:19:52,240
to get around courts.

3569
04:19:52,880 --> 04:19:55,460
So if the court finds, I mean, that's what-

3570
04:19:55,460 --> 04:19:57,000
I mean, that's not what I said at all.

3571
04:19:57,000 --> 04:20:00,380
I'm seeing that's what the fact is.

3572
04:20:00,800 --> 04:20:05,880
Based on someone looking at us now passing the legislation through the Constitution,

3573
04:20:06,440 --> 04:20:09,860
it allows us then to go and defend it as a Constitution

3574
04:20:10,420 --> 04:20:14,800
so that it cannot be challenged as it being unconstitutional

3575
04:20:14,800 --> 04:20:17,520
because we've passed the Constitutional Amendment to make it real.

3576
04:20:20,270 --> 04:20:22,150
That's not the way the Constitution is.

3577
04:20:22,150 --> 04:20:24,050
Mr. Capela, thank you, Mr. Chairman.

3578
04:20:24,410 --> 04:20:34,110
Ms. Howard, my doctors and doctors all across the state have done a tremendous job making

3579
04:20:35,350 --> 04:20:40,170
elected officials as well as the public very well aware of the medical liability crisis,

3580
04:20:40,890 --> 04:20:46,810
to the point that we are on the verge of seeing some major medical malpractice reform

3581
04:20:46,810 --> 04:20:47,730
in the state of Texas.

3582
04:20:48,710 --> 04:20:54,550
In the process of doing that, and in all the questioning that comes up, and some today,

3583
04:20:55,290 --> 04:21:02,330
and I can't even count the number of hearings even before today that address this topic.

3584
04:21:04,560 --> 04:21:13,760
With great certainty, TMLT and many others have said the CAP micro is definitely going

3585
04:21:13,760 --> 04:21:15,040
to make things better.

3586
04:21:15,320 --> 04:21:17,480
It's definitely going to reduce the cost drivers.

3587
04:21:17,480 --> 04:21:23,440
But then every time Representative Rose or someone else asks the tough question, how much

3588
04:21:23,440 --> 04:21:29,860
better because these same doctors who have done just a tremendous job of making us all

3589
04:21:29,860 --> 04:21:38,560
very well aware of the crisis are also asking the very tough question, but a very proper

3590
04:21:38,890 --> 04:21:45,180
and pointed question about when can they expect to see the relief in their premiums.

3591
04:21:45,180 --> 04:21:52,140
And they're asking me to make sure that I take care of making sure that they see relief

3592
04:21:52,140 --> 04:21:58,600
in their premiums and that we don't just change what happens at the courthouse, but we also

3593
04:21:58,600 --> 04:22:05,840
change what happens with their premiums, which gets into the whole purpose of medical

3594
04:22:05,840 --> 04:22:13,480
malpractice reform, which is we are driving doctors out of the practice because they can't

3595
04:22:13,480 --> 04:22:17,460
keep up with the overhead and the cost of maintaining the practice.

3596
04:22:20,470 --> 04:22:27,110
I can't any longer accept the answer that we don't know for sure because we always cite

3597
04:22:27,110 --> 04:22:33,570
micro and California's 25 years of experience to demonstrate that yes it will make a difference

3598
04:22:33,570 --> 04:22:40,170
and yes we will see reductions but for whatever reason we can't use those same examples

3599
04:22:40,170 --> 04:22:47,190
living in 25 years worth of proof to then say we can't expect this type of reduction.

3600
04:22:48,490 --> 04:22:52,030
Are we going to see a reduction in cost drivers?

3601
04:22:55,190 --> 04:22:56,570
Let me start by saying that.

3602
04:22:56,570 --> 04:22:58,370
And I do want a yes or no answer.

3603
04:23:00,370 --> 04:23:04,570
TMLT's board is composed of TMA members.

3604
04:23:05,850 --> 04:23:08,810
The trust rights medical liability insurance.

3605
04:23:08,930 --> 04:23:13,350
Ms. Howard, I'm very, very familiar with TMLT's board and how they came

3606
04:23:13,350 --> 04:23:16,990
into being and how they operate and the whole bit.

3607
04:23:17,670 --> 04:23:26,150
But what I want to know is if TMLT is confident that this legislation, which I am a joint

3608
04:23:26,150 --> 04:23:31,390
author and I'm very proud to be a joint author of this legislation, that this legislation

3609
04:23:31,390 --> 04:23:36,490
is going to make a difference in the cost-driving, the cost-drivers.

3610
04:23:36,490 --> 04:23:44,110
is TMLT also certain because if it is going to make a difference in the cost drivers, then

3611
04:23:44,110 --> 04:23:48,830
it will reduce the cost drivers for the premiums.

3612
04:23:48,910 --> 04:23:49,350
Will it not?

3613
04:23:51,270 --> 04:23:51,890
It should.

3614
04:23:52,450 --> 04:23:52,750
Okay.

3615
04:23:53,730 --> 04:24:01,090
And if there's so much certainty as to what has happened in California for 25 years, can't

3616
04:24:01,090 --> 04:24:08,110
You also apply that certainty here now, this session, to give the doctors the relief that

3617
04:24:08,110 --> 04:24:10,650
they deserve that they have fought so valiantly for.

3618
04:24:13,420 --> 04:24:19,440
There are many cost drivers in setting insurance premiums, for instance, reinsurance.

3619
04:24:20,280 --> 04:24:20,540
Okay.

3620
04:24:20,900 --> 04:24:26,700
But there are other cost drivers that we're not taking into account and shame on everyone

3621
04:24:26,700 --> 04:24:31,500
in this room and everyone participating in this process to not make us aware of

3622
04:24:31,500 --> 04:24:37,560
right now, while we're in session, while we can do something about it. If there's

3623
04:24:37,560 --> 04:24:41,740
something we're not tackling, and Representative Rose asked you that

3624
04:24:41,740 --> 04:24:47,320
question too, let us know. And if you can't think of it tonight, let us know by

3625
04:24:47,320 --> 04:24:53,460
next week. We have plenty of time to get it done this session. Tell us what

3626
04:24:53,460 --> 04:24:58,440
else we need to do. Tell us, I want to know what we need to do to answer my

3627
04:24:58,440 --> 04:25:02,380
doctor's questions and give them the relief they deserve.

3628
04:25:03,320 --> 04:25:09,660
I understand. We will supplement the testimony today with the best information that we can give you.

3629
04:25:10,020 --> 04:25:15,320
There are some cost drivers out of the control of both the legislature and the insurance companies,

3630
04:25:15,360 --> 04:25:23,200
such as the cost of reinsurance. How much they have to pay a reinsurer to help spread their risk.

3631
04:25:23,200 --> 04:25:28,080
And those reinsurers look at the legal and the marketplace

3632
04:25:28,080 --> 04:25:30,080
in a state deciding how much

3633
04:25:30,080 --> 04:25:33,620
of the premium dollars they need to reinsure.

3634
04:25:33,760 --> 04:25:38,060
So there are factors there without the control,

3635
04:25:38,400 --> 04:25:39,740
outside the control of both.

3636
04:25:39,920 --> 04:25:41,980
But if you would allow us to supplement it

3637
04:25:41,980 --> 04:25:46,700
with any other thoughts on any other positive actions

3638
04:25:46,700 --> 04:25:50,280
that could be taken to assure Texas doctors

3639
04:25:50,280 --> 04:25:58,520
that their medical liability insurance rates will first stabilize and then have

3640
04:25:58,520 --> 04:26:03,160
they can enjoy some reduction will start. If you leave it in the hands of us to

3641
04:26:03,160 --> 04:26:06,700
figure out what the reduction should be you may not be happy with what that

3642
04:26:06,700 --> 04:26:12,220
reduction will be. So you need to show us. Thank you. Thank you for that

3643
04:26:12,220 --> 04:26:13,740
opportunity. Mr. Gattus.

3644
04:26:16,230 --> 04:26:18,750
Mike I got one more question for you and it goes

3645
04:26:18,750 --> 04:26:24,090
back to, we asked, I asked one of the plaintiffs on your panel,

3646
04:26:27,910 --> 04:26:28,470
I believe our

3647
04:26:28,470 --> 04:26:33,950
current day system assures plaintiffs just as well that they don't get fully

3648
04:26:33,950 --> 04:26:38,590
compensated for what their two, what their two claims are, for what their two

3649
04:26:38,590 --> 04:26:43,890
damages. When you're pulling 40% plus cost out of somebody's award.

3650
04:26:47,930 --> 04:26:48,270
You gave

3651
04:26:48,270 --> 04:26:52,390
us a speech the other day, I talked the other day and you talked, not a

3652
04:26:52,390 --> 04:26:59,610
speech, spoke with us here, and talked about one of the major problems of where we are today

3653
04:26:59,610 --> 04:27:05,330
in our insurance is the unpredictability of what's going on in our system.

3654
04:27:06,710 --> 04:27:12,910
And I don't mean this disrespectful, I truly don't mean this in this disrespectful way,

3655
04:27:12,930 --> 04:27:20,730
but it's somewhat described as this, as non-economic damages is the lottery aspect

3656
04:27:20,730 --> 04:27:27,290
of our lawsuits and I say that on the aspect of that's where it's we don't know

3657
04:27:27,290 --> 04:27:31,690
what that number is we nobody really does and the jury is required just to pull

3658
04:27:31,690 --> 04:27:37,050
it out of the air and try to figure out what it is and present with great

3659
04:27:37,050 --> 04:27:41,490
plaintiffs lawyers like we're presented here that give us the same peer jerk and

3660
04:27:41,490 --> 04:27:45,510
you know what is it worth you know not to be scalded and your skin falling

3661
04:27:45,510 --> 04:27:52,710
off and that you know about millions, billions of dollars. So that's part of the problem

3662
04:27:52,710 --> 04:27:55,410
with our deal is the unpredictability of what these awards are going to be.

3663
04:27:56,550 --> 04:27:57,190
Yes, sir.

3664
04:27:59,510 --> 04:28:04,650
Let's take a situation where we make a cap and we have a million-dollar award and

3665
04:28:04,650 --> 04:28:11,290
we set non-economic games at $250,000. And so let's assume a million-dollar award

3666
04:28:14,070 --> 04:28:21,350
$250,000 of that is non-economic. We have $750,000 of true economic harm. We set contingency

3667
04:28:21,350 --> 04:28:31,590
fees at 35%. 35% comes out of that award. $650,000 of what the plane is getting, right? That's

3668
04:28:31,590 --> 04:28:35,410
the case scenario, $650,000 of what they're going to get, but 35% come out.

3669
04:28:35,550 --> 04:28:36,910
If there's no expenses, yes, sir.

3670
04:28:36,910 --> 04:28:38,110
That's right. No expenses.

3671
04:28:39,170 --> 04:28:48,630
So in essence, even in that case, we've made sure our policy sitting here today is going to be that we're making it where planes cannot be made whole in the state of Texas.

3672
04:28:49,390 --> 04:28:49,750
That's right.

3673
04:28:51,030 --> 04:29:01,670
If you define it that way, I don't agree with the prospect that the purpose of a trial is to make someone whole for their damages because we don't do that.

3674
04:29:02,430 --> 04:29:04,190
That's not walking in the door.

3675
04:29:04,190 --> 04:29:10,670
Well, but I understand that because we can make them whole under that non-economic deal

3676
04:29:10,670 --> 04:29:14,630
for the same reason that we're sitting up here setting the policy, but we for sure have

3677
04:29:14,630 --> 04:29:17,370
not made them whole with regard to their economic damage.

3678
04:29:17,550 --> 04:29:22,590
They're true out-of-pocket, past medical, future medical, wages, those types of things

3679
04:29:22,590 --> 04:29:23,290
in that scenario.

3680
04:29:23,910 --> 04:29:33,790
If I understood you correctly, if a plaintiff has economics of whatever number you use

3681
04:29:34,490 --> 04:29:40,930
Let's assume the jury has returned $750,000 of this as true economic, $250,000 of this

3682
04:29:40,930 --> 04:29:50,410
is non-economic with a $8 award, we have a 35% contingency fee and we pull $350,000 out

3683
04:29:50,410 --> 04:29:51,630
of that to assume a no-cost.

3684
04:29:51,890 --> 04:29:58,110
Then the plaintiff under that scenario with or without the cap is going to get less than

3685
04:29:58,110 --> 04:29:59,690
about the jury.

3686
04:30:00,000 --> 04:30:05,680
So they should for that injury. That's right. And they get less anyway today under our scenario.

3687
04:30:06,060 --> 04:30:13,680
It's no different. And so, if we had a scenario with that instead we set contingency rates,

3688
04:30:14,380 --> 04:30:20,040
what they're going to be, or we set a reasonable attorney fee rate up to a certain percent,

3689
04:30:20,740 --> 04:30:26,300
and we say economic damages, no cap, we're capping on economic damages, that's the

3690
04:30:26,300 --> 04:30:31,400
an unknown deal, and we add that you pay attorney's fees on top of this, and we said it because

3691
04:30:31,400 --> 04:30:35,440
we don't want them to say it because we want it to be a reasonable way, we would assure

3692
04:30:35,440 --> 04:30:38,660
that economic damages from a payment are taken care of.

3693
04:30:39,200 --> 04:30:42,940
They would have some sort of recovery for non-economic damages, correct?

3694
04:30:43,800 --> 04:30:44,160
Yes, sir.

3695
04:30:44,340 --> 04:30:49,600
And that the attorneys in the deal would be compensated accordingly by the court

3696
04:30:49,600 --> 04:30:53,700
or by in-settlement for what they put into the case.

3697
04:30:54,360 --> 04:30:57,600
That's what, are you asking me, that's what your proposal would do, yes.

3698
04:30:57,600 --> 04:30:58,760
And that's what my proposal would do?

3699
04:30:58,920 --> 04:30:59,260
Yes, sir.

3700
04:30:59,500 --> 04:31:00,120
We'll do that.

3701
04:31:01,940 --> 04:31:02,360
I don't know.

3702
04:31:03,540 --> 04:31:06,600
It would do some other things, too, but...

3703
04:31:06,600 --> 04:31:08,820
Well, what other things would it do?

3704
04:31:09,140 --> 04:31:14,020
Well, if the same thing is represented, that proposal puts more pressure.

3705
04:31:14,940 --> 04:31:17,780
If you're doing it, if that proposal puts more pressure,

3706
04:31:17,780 --> 04:31:20,980
not less on an already fragile broken system.

3707
04:31:20,980 --> 04:31:26,000
Well, what I've taken away from that is I've taken a huge, and I think in your presentation

3708
04:31:26,000 --> 04:31:31,440
last time, as you've said, the average non-economic gain is $1.3 million in a verdict.

3709
04:31:32,320 --> 04:31:36,860
And so, and that's right, and so we've kept it at $250,000 in assessments.

3710
04:31:37,220 --> 04:31:41,620
We've given back the doctors or the insurance companies about $1.1 million.

3711
04:31:42,300 --> 04:31:45,600
In a million dollar case, I'm taking $350,000 back.

3712
04:31:45,920 --> 04:31:46,140
Right.

3713
04:31:46,460 --> 04:31:49,200
And I'm making sure a plaintiff is made whole and I'm making sure somebody is

3714
04:31:49,200 --> 04:31:51,460
compensated for their job there, right?

3715
04:31:51,900 --> 04:32:03,650
Well, I certainly think that if we're certainly glad to look at the idea, we have discussed

3716
04:32:03,650 --> 04:32:10,850
the concept, you know, if the concern is about making it equal both ways.

3717
04:32:11,250 --> 04:32:16,130
Well, in this case it would, because in fact, in taking into consideration the other things

3718
04:32:16,130 --> 04:32:21,630
that we're doing in this bill with the offer of settlement rule, we will be paying the attorney's

3719
04:32:21,630 --> 04:32:29,210
fees and if the plaintiffs didn't take the reasonable settlement, then their award is

3720
04:32:29,210 --> 04:32:34,050
going to be reduced by the amount of settlement, what your costs are from that point of view

3721
04:32:34,050 --> 04:32:34,290
on.

3722
04:32:34,530 --> 04:32:36,030
That's a much more reasonable system.

3723
04:32:36,290 --> 04:32:40,730
So if we want to regulate it in that way and then say, well, if the case is tried

3724
04:32:40,730 --> 04:32:58,610
And whatever the result, if the plaintiff wins, they get X in a fee, but if the defendant wins, the plaintiff pays that same X in a fee, then that's certainly something we could look at.

3725
04:32:58,630 --> 04:33:01,330
Well, I don't think that that's what we're going to as a true loser pays system.

3726
04:33:01,570 --> 04:33:08,670
And I think the fact that y'all don't necessarily like the system and the plaintiffs don't necessarily like the system they being that we're right on track.

3727
04:33:08,670 --> 04:33:11,450
So, thank you very much for your time.

3728
04:33:14,320 --> 04:33:15,500
Patrick, control employees.

3729
04:33:17,970 --> 04:33:18,370
Thank you, Chairman.

3730
04:33:18,730 --> 04:33:19,230
First question.

3731
04:33:19,830 --> 04:33:22,470
Mr. Ho, thank you for your patience today.

3732
04:33:24,390 --> 04:33:27,870
When California set the cap at $250,000,

3733
04:33:29,190 --> 04:33:34,030
did you think it was a fair amount at that time, in your opinion?

3734
04:33:34,290 --> 04:33:35,710
Oh, I was a junior in high school.

3735
04:33:36,890 --> 04:33:41,670
Do you think now there's a fair amount at that time?

3736
04:33:46,920 --> 04:33:51,540
You know, in a perfect world, and I'm saying this is a join-off of the real world.

3737
04:33:51,580 --> 04:33:57,860
I understand that in a perfect world, you know, always we could give everybody everything,

3738
04:33:58,760 --> 04:34:00,940
but we just don't live in a perfect world.

3739
04:34:01,440 --> 04:34:09,740
And if you have the authority today to essentially not compensate someone,

3740
04:34:10,020 --> 04:34:15,320
but just decide what the elements of compensation are, that's a policy question.

3741
04:34:15,320 --> 04:34:20,880
And all of those decisions that you make, if you squeeze the balloon here, it's not there.

3742
04:34:21,460 --> 04:34:31,580
And so, if the effect of saying you get an extra amount of economic damages means that my kids don't have a pediatrician,

3743
04:34:32,440 --> 04:34:36,140
or they don't have an OBGN, then no, I don't think that's fair.

3744
04:34:37,160 --> 04:34:42,920
And making sure that that one person has a remedy affects over half the counties in the state,

3745
04:34:42,920 --> 04:34:44,580
I don't think that's fair at all.

3746
04:34:44,940 --> 04:34:46,460
They're imposing a limitation.

3747
04:34:47,080 --> 04:34:51,620
That means those kids and those pregnant moms have doctors

3748
04:34:51,620 --> 04:34:54,020
and have access to doctors that they don't have to quit.

3749
04:34:54,800 --> 04:34:56,160
Those doctors don't have to quit.

3750
04:34:56,320 --> 04:34:57,580
Yeah, I think that's a great idea.

3751
04:34:58,620 --> 04:35:02,280
And Micros seems at that figure to produce that result.

3752
04:35:03,020 --> 04:35:03,540
Thank you, Mark.

3753
04:35:04,520 --> 04:35:05,100
Ms. Howard?

3754
04:35:05,420 --> 04:35:06,140
Just real quick.

3755
04:35:07,140 --> 04:35:09,980
Earlier, in reference to my representative

3756
04:35:09,980 --> 04:35:14,120
of the fellows questions. You told me that you couldn't answer the question if the rates

3757
04:35:14,120 --> 04:35:18,440
would go down or when they would go down, but somebody else could from TMLT. Do you

3758
04:35:18,440 --> 04:35:20,420
know who that would be and if you're here today?

3759
04:35:20,420 --> 04:35:27,160
Yes, I do. Tom Cotton is here and is prepared to try to answer any of your questions.

3760
04:35:28,300 --> 04:35:28,660
Thank you very much.

3761
04:35:28,660 --> 04:35:30,200
Would you like to hear him now?

3762
04:35:30,240 --> 04:35:34,760
Perhaps later or whatever the chairman would prefer in that regard.

3763
04:35:36,480 --> 04:35:38,600
How was otherwise engaged? What is it you're asking?

3764
04:35:40,320 --> 04:35:43,960
Ms. Howard said that although she can't answer the question when the rates would go down

3765
04:35:43,960 --> 04:35:47,440
and by how much somebody else in this room is prepared to answer that question.

3766
04:35:47,560 --> 04:35:50,400
All right. That's good. Well, hopefully they'll fill out a witness' affirmation deal.

3767
04:35:50,620 --> 04:35:53,700
I'm moving to the top of the very large stack.

3768
04:35:54,060 --> 04:35:54,600
Mr. Harkin.

3769
04:35:54,760 --> 04:35:57,180
Very quick question, Mike. Is this part of the aid that we were looking at

3770
04:35:57,180 --> 04:35:58,760
that talks years of wrongful death?

3771
04:35:58,960 --> 04:36:01,380
This doesn't pull any wages into the cap, does it?

3772
04:36:02,760 --> 04:36:07,580
That cap caps it. The current cap that exists caps everything except medical.

3773
04:36:08,760 --> 04:36:11,080
So, A, which is on page nine, right?

3774
04:36:11,340 --> 04:36:16,200
That holds everything except wages. Excuse me, except medical.

3775
04:36:16,680 --> 04:36:21,320
Okay, so wages are already in here under the existing law and so this is now, okay.

3776
04:36:23,100 --> 04:36:29,140
Well, I think the deal was that it's not under there in the existing law and it will be if we pass the way.

3777
04:36:29,140 --> 04:36:30,600
Oh, that's what I'm trying to do.

3778
04:36:30,740 --> 04:36:34,300
I know the current existing father, the wrongful death

3779
04:36:34,300 --> 04:36:36,460
cap includes everything except medical.

3780
04:36:36,820 --> 04:36:37,340
Except medical.

3781
04:36:37,640 --> 04:36:40,400
In this case, it would include medical if we pass this out.

3782
04:36:42,400 --> 04:36:46,140
Yeah, the 250 cap includes medical, yes.

3783
04:36:50,010 --> 04:36:51,990
This is the wrong, let's return to the wrongful death.

3784
04:36:52,130 --> 04:36:52,330
Yes.

3785
04:36:52,510 --> 04:36:54,010
We're mixing a little bit here.

3786
04:36:54,410 --> 04:36:59,310
The wrongful death cap, A, includes all damages except medical.

3787
04:36:59,790 --> 04:37:02,590
The 250 cap does not cover.

3788
04:37:02,590 --> 04:37:08,550
where it's only non-economic and including punitives, it doesn't cover economic to find

3789
04:37:08,550 --> 04:37:09,570
this medical and wages.

3790
04:37:09,890 --> 04:37:14,270
So basically as far as the scope, all this is doing is pulling in punitives and everything

3791
04:37:14,270 --> 04:37:15,170
else stays the same?

3792
04:37:15,770 --> 04:37:20,610
The difference is in A is to include punitives and make it per claimant.

3793
04:37:20,970 --> 04:37:24,110
Okay, but everything else is already, that's the only thing that's being pulled into

3794
04:37:24,110 --> 04:37:26,690
the scope, it's not already there as punitives.

3795
04:37:27,050 --> 04:37:27,170
Okay.

3796
04:37:27,550 --> 04:37:27,730
Yes.

3797
04:37:29,720 --> 04:37:48,340
Okay. Thank you very much. It is the intent of the chair to stand at ease until let's make it 7.15 when the clock in the back says 7.15. We will start calling up witnesses individually and we will go until we are through.

3798
05:00:30,030 --> 05:00:33,530
Practice, which is poor hands-on practice.

3799
05:00:34,190 --> 05:00:41,170
Which we think are the elements of professionalism, judgment, ability, knowledge, those sorts of things.

3800
05:00:41,350 --> 05:00:42,210
And that's what we looked at.

3801
05:00:42,430 --> 05:00:45,870
Well, but those can include character, like...

3802
05:00:45,870 --> 05:00:46,830
Professionalism is character.

3803
05:00:47,090 --> 05:00:49,190
Yeah, and I don't consider character malpractice.

3804
05:00:49,510 --> 05:00:51,150
So I'm just trying to...

3805
05:00:51,150 --> 05:00:53,470
Oh, well, it's very definitely malpractice.

3806
05:00:57,490 --> 05:00:59,630
It's the foundation of what a doctor does.

3807
05:01:00,170 --> 05:01:02,170
If you're not a professional, you cannot practice.

3808
05:01:02,310 --> 05:01:05,210
So like some of those 27 were alcoholics or drug addicts?

3809
05:01:05,210 --> 05:01:07,630
None of them were alcoholics or drug addicts.

3810
05:01:07,730 --> 05:01:08,870
That's a whole different group.

3811
05:01:08,890 --> 05:01:10,190
What did they do, the 27?

3812
05:01:12,090 --> 05:01:19,070
Abandoned patients, operated unskillfully,

3813
05:01:21,470 --> 05:01:25,430
damaged, killed, maimed.

3814
05:01:25,890 --> 05:01:29,110
Hands-on operating type procedures.

3815
05:01:29,530 --> 05:01:30,890
That was a lot of them.

3816
05:01:31,190 --> 05:01:34,550
That wasn't all of them, but that was a lot of them.

3817
05:01:34,610 --> 05:01:37,130
That's what we're talking about.

3818
05:01:37,210 --> 05:01:41,710
Layman's term of malpractice, so that article was not quite correct then.

3819
05:01:42,670 --> 05:01:44,590
He said medical errors, again.

3820
05:01:44,590 --> 05:01:51,050
And he's right as far as his term for medical errors as the same sort of term that they used

3821
05:01:51,610 --> 05:01:56,050
in the Institute of Medicine study that said they were X number of deaths a year.

3822
05:01:56,230 --> 05:01:57,750
So that's like a mistake in judgment.

3823
05:02:00,120 --> 05:02:05,560
But I think what he was talking about, leaving an instrument in a patient, you know, some

3824
05:02:05,560 --> 05:02:06,920
gross thing like that,

3825
05:02:09,360 --> 05:02:11,820
but since I've been there, I haven't seen a case where

3826
05:02:11,820 --> 05:02:13,700
someone's left an instrument in somebody.

3827
05:02:13,700 --> 05:02:16,560
So, I haven't had a chance to check that out.

3828
05:02:16,680 --> 05:02:17,780
Thank you and appreciate your work.

3829
05:02:17,940 --> 05:02:18,540
You had a tough job.

3830
05:02:18,760 --> 05:02:19,480
Thank you very much.

3831
05:02:20,960 --> 05:02:24,740
Dr. Patrick, do you identify with which group you are with?

3832
05:02:25,260 --> 05:02:25,960
Yes, I did.

3833
05:02:26,380 --> 05:02:27,580
The State Board of Modest Examiner.

3834
05:02:27,700 --> 05:02:28,080
Okay, sure.

3835
05:02:28,140 --> 05:02:28,840
We just want to make sure.

3836
05:02:30,300 --> 05:02:32,800
Anybody else have any questions of this resource witness?

3837
05:02:35,820 --> 05:02:37,500
All right, Dr. Homer, I'll let you go home.

3838
05:02:38,180 --> 05:02:38,920
Thank you very much.

3839
05:02:39,360 --> 05:02:40,080
Yeah, I know.

3840
05:02:40,180 --> 05:02:43,720
Thank you very much.

3841
05:02:46,510 --> 05:02:56,010
Okay, Chair recognizes Brian Ryder to talk on HB3, Mr. Ryder is with the Texas Department

3842
05:02:56,010 --> 05:02:56,630
of Insurance.

3843
05:02:57,870 --> 05:02:58,470
And?

3844
05:03:00,410 --> 05:03:01,170
Is it Maw?

3845
05:03:01,570 --> 05:03:04,170
Yes, I'm CH Maw with the Texas Department of Insurance.

3846
05:03:04,430 --> 05:03:08,770
Okay, Chair also recognizes Mr. CH Maw with the Texas Department of Insurance to talk

3847
05:03:08,770 --> 05:03:19,150
on HB3 and HJR3 as well as Mr. Ryder to talk on HJR3 and HB3.

3848
05:03:20,250 --> 05:03:24,150
I'm the Senior Associate Commissioner for Propoptic Casualty.

3849
05:03:24,490 --> 05:03:29,130
Brian Ryder is the actually that works on medical malpractice.

3850
05:03:29,710 --> 05:03:35,690
So I'll try to fill the questions and if I get to some technical problems I'll defer to Brian.

3851
05:03:35,690 --> 05:03:38,310
Does anybody have any specific questions?

3852
05:03:40,350 --> 05:03:42,190
Yeah, the basis against the rollback.

3853
05:03:44,270 --> 05:03:46,290
Go ahead, Ms. Davis.

3854
05:03:46,710 --> 05:03:47,930
Yeah, I wanted to ask a question.

3855
05:03:48,070 --> 05:03:51,470
I met with the commissioner the other day and he said that he was going to try to get some information

3856
05:03:51,470 --> 05:03:55,190
with regard to what we should expect this legislation to do.

3857
05:03:55,590 --> 05:04:02,810
And I'm wondering if he's able to do that if you all have determined what impact this legislation will have on insurance rates.

3858
05:04:03,730 --> 05:04:04,790
We are working on it.

3859
05:04:04,790 --> 05:04:11,030
We're actually looking at each of the components of the bill and for lack of better what price,

3860
05:04:11,970 --> 05:04:20,210
what the results of the implementation of those reforms will do to lowering insurance

3861
05:04:20,210 --> 05:04:20,630
losses.

3862
05:04:21,050 --> 05:04:24,530
So at this point we have no actual measurement in terms of what we should expect.

3863
05:04:26,550 --> 05:04:31,930
We are working on it and we should have numbers available very shortly.

3864
05:04:32,210 --> 05:04:32,550
Thank you.

3865
05:04:35,000 --> 05:04:35,880
Mr. Hardnett?

3866
05:04:36,360 --> 05:04:36,880
Sorry.

3867
05:04:37,100 --> 05:04:40,080
I think I've been asking this question a lot, but it's my understanding that Nintendo

3868
05:04:40,080 --> 05:04:46,640
are presenting a report that said that basically there's an 11% increase per year over the

3869
05:04:46,640 --> 05:04:49,380
last average of the last few years per severity.

3870
05:04:49,560 --> 05:04:50,220
Does that sound right?

3871
05:04:50,760 --> 05:04:53,340
It's basically the cost to insure a physician.

3872
05:04:53,760 --> 05:04:55,660
It's the combination of severity and frequency.

3873
05:04:55,940 --> 05:04:56,080
Okay.

3874
05:04:56,140 --> 05:04:59,760
So is that basically saying that all things considered insurance premium should go up

3875
05:04:59,760 --> 05:05:00,600
11% a year?

3876
05:05:02,320 --> 05:05:08,620
That's more to it, but essentially, it's a cost to ensure a, or an insurance company

3877
05:05:08,620 --> 05:05:13,180
to ensure a physician is going up about 11% a year.

3878
05:05:14,720 --> 05:05:15,280
Okay.

3879
05:05:15,400 --> 05:05:21,820
Now, I thought that the 11% study severity isn't the actual premium cost.

3880
05:05:22,140 --> 05:05:24,360
Severity deals with the actual awards, right?

3881
05:05:24,780 --> 05:05:27,260
The cost of each, per claim, is severity.

3882
05:05:27,740 --> 05:05:27,960
Okay.

3883
05:05:27,960 --> 05:05:34,160
but basically the premium increase should be directly correlated with the severity increase.

3884
05:05:34,420 --> 05:05:38,400
A combination of two things, severity, which is the cost of claim and frequency.

3885
05:05:38,740 --> 05:05:39,820
And how much you get.

3886
05:05:40,000 --> 05:05:41,960
So that means there should be a direct correlation.

3887
05:05:42,220 --> 05:05:42,340
Yeah.

3888
05:05:42,560 --> 05:05:43,860
And that's where you get to 11 percent.

3889
05:05:50,270 --> 05:05:52,890
Here's your chance, fellas and ladies.

3890
05:05:54,070 --> 05:05:58,210
Mr. Ryder, will you tell us your name for the record?

3891
05:05:58,510 --> 05:05:59,490
My name is Brian Ryder.

3892
05:05:59,590 --> 05:06:01,490
I'm an actuary with a Texas Department of Insurance.

3893
05:06:01,890 --> 05:06:02,170
All right.

3894
05:06:02,350 --> 05:06:02,650
Very good.

3895
05:06:03,210 --> 05:06:03,650
Okay.

3896
05:06:04,650 --> 05:06:10,530
I want to ask another question as it relates to the losses that insurance companies, how

3897
05:06:10,530 --> 05:06:15,670
do they, are you all able to get the information you need to determine if there are facts in

3898
05:06:15,670 --> 05:06:19,630
the, you know, trying to recoup their losses with regard to how they set their rates?

3899
05:06:21,250 --> 05:06:25,010
As someone of earlier witness say, we only regulate about 30 percent of market.

3900
05:06:25,870 --> 05:06:30,590
At least for those, we have a pretty good idea when they make their rate falling why

3901
05:06:30,590 --> 05:06:32,350
you're asking where rate increases?

3902
05:06:32,910 --> 05:06:36,190
I say so once you just said 30% of the market that you regulate,

3903
05:06:36,770 --> 05:06:41,110
can you tell me what the difference is with regard to the rates for the 30% you regulate

3904
05:06:41,110 --> 05:06:42,570
versus those that you don't regulate?

3905
05:06:45,750 --> 05:06:47,610
I don't have that information with me now.

3906
05:06:48,090 --> 05:06:52,550
But in our packet that we, I think the commission handed out which shows the rate comparison,

3907
05:06:52,890 --> 05:06:57,450
the ranges of rates by specialty, by...

3908
05:06:57,450 --> 05:06:58,490
That's not what I'm looking for.

3909
05:06:58,490 --> 05:07:03,230
It did show me by specialty, but it didn't tell me about the percentage, the rate for

3910
05:07:03,230 --> 05:07:08,770
the 30% that we regulate, the USTDI regulates versus the 70% that you don't regulate.

3911
05:07:08,970 --> 05:07:13,170
What is the rate difference between those two, those two types of companies?

3912
05:07:13,430 --> 05:07:16,830
I think we're going to provide that information and breaking it down.

3913
05:07:20,620 --> 05:07:21,020
Yeah.

3914
05:07:21,300 --> 05:07:25,700
With the companies that we don't regulate and don't have any information on, we don't

3915
05:07:25,700 --> 05:07:28,420
have it here, but we do have TML fees, rates.

3916
05:07:28,420 --> 05:07:34,900
Would you be able to do some kind of comparison with regard to what TMLT's rate is versus

3917
05:07:34,900 --> 05:07:41,900
those insurance companies that we don't regulate so that if you're TDI, you're able to measure

3918
05:07:41,900 --> 05:07:46,080
whether or not it's the insurance carriers that are unregulated that are either compliant

3919
05:07:46,080 --> 05:07:52,360
or out of going up 140% or if it's all of them, would you be able to make some kind

3920
05:07:52,360 --> 05:07:53,560
of comparative analysis?

3921
05:07:54,560 --> 05:08:00,840
Yes, we can compare actual rates that they're charging today, rate-regulated and long-rate

3922
05:08:00,840 --> 05:08:07,080
TMLT, and we also have a chart that shows the rate changes they've taken the last three

3923
05:08:07,080 --> 05:08:07,480
years.

3924
05:08:08,900 --> 05:08:10,600
For the regulated and unregulated.

3925
05:08:10,920 --> 05:08:13,480
And that one is broken down by individual companies.

3926
05:08:14,080 --> 05:08:19,140
The only unregulated one that we get rate information on is the Texas Medical Alliance

3927
05:08:19,140 --> 05:08:25,680
The other companies, either the Circle Slides carriers or the ones who write their other

3928
05:08:25,680 --> 05:08:28,900
non-regulated entities would not file information on this.

3929
05:08:29,060 --> 05:08:31,660
So does this bill cover unregulated companies?

3930
05:08:32,940 --> 05:08:37,860
In terms of, as I understand it, it would affect every medical liability claim.

3931
05:08:38,180 --> 05:08:42,600
Because it makes the changes a legal system, and so if you sell medical insurance you

3932
05:08:42,600 --> 05:08:44,860
would be affected by it.

3933
05:08:44,860 --> 05:08:50,180
Could you tell me if you're able to tell whether or not the factors

3934
05:08:50,180 --> 05:08:54,980
that you're using for the purpose of this bill would have the same impact

3935
05:08:54,980 --> 05:08:58,640
and you can't tell me on this based on what you're saying, you would not be able

3936
05:08:58,640 --> 05:09:03,680
to tell whether or not the factors that we use on this bill would impact the regulated

3937
05:09:03,680 --> 05:09:05,500
and unregulated the same way?

3938
05:09:08,000 --> 05:09:13,640
So by that you would be able, the unregulated companies could usually have charged rates

3939
05:09:14,280 --> 05:09:18,480
that this would have no impact on?

3940
05:09:18,980 --> 05:09:23,320
Well, I think there are two issues in that.

3941
05:09:23,540 --> 05:09:27,580
One is the impact of these reforms will affect all companies

3942
05:09:27,580 --> 05:09:29,460
the same way to sell mental insurance

3943
05:09:29,460 --> 05:09:32,740
because we don't think the doctor's election

3944
05:09:32,740 --> 05:09:37,760
is biased into any one way

3945
05:09:37,760 --> 05:09:40,580
that would affect one more than the other.

3946
05:09:41,260 --> 05:09:43,120
I'm sorry, would you please take that, please?

3947
05:09:43,700 --> 05:09:46,840
That the insurance, the way their losses are impacted,

3948
05:09:47,180 --> 05:09:50,180
how much they pay out in claims, we think there's not going

3949
05:09:50,180 --> 05:09:52,880
to be any difference between a regulated company

3950
05:09:52,880 --> 05:09:55,420
versus a non-regulated company, because that's a change

3951
05:09:55,420 --> 05:09:56,560
to the legal system.

3952
05:09:57,240 --> 05:10:01,500
Yeah, but what about the, but as I understand it,

3953
05:10:01,540 --> 05:10:05,100
and maybe I missed it, as I understand that the reason

3954
05:10:05,100 --> 05:10:07,680
that premiums go up are based on several factors,

3955
05:10:07,680 --> 05:10:13,840
including not only those claims paid out but also the other kinds of variables

3956
05:10:13,840 --> 05:10:17,720
that they consider when they determine what the charge for the policy, is that correct?

3957
05:10:20,110 --> 05:10:24,690
There are other factors that develop, there are other factors that they consider

3958
05:10:25,390 --> 05:10:28,250
when they determine what the policy rates will be.

3959
05:10:28,450 --> 05:10:33,650
In theory, they should all have the same variables that they may be different experience

3960
05:10:34,290 --> 05:10:35,470
within each company.

3961
05:10:35,590 --> 05:10:36,670
They may have a different expense.

3962
05:10:36,670 --> 05:10:44,450
One may have high expenses, one may have lower, but the factors they use to decide what premium

3963
05:10:44,450 --> 05:10:46,490
to charge should basically be the same.

3964
05:10:46,730 --> 05:10:53,490
But in theory, one's expenses could be greater than the other's, and so therefore the claims

3965
05:10:53,490 --> 05:10:56,690
that you pay out would have a different impact on the company as well.

3966
05:10:56,870 --> 05:10:57,390
That's possible.

3967
05:10:57,810 --> 05:10:57,990
Okay.

3968
05:10:58,530 --> 05:11:03,150
And if you're able to tell when you go back, you can get the information because

3969
05:11:03,150 --> 05:11:08,710
You do a little study to see if you can kind of determine whether or not there's some difference

3970
05:11:09,230 --> 05:11:13,170
with regard to the regulated and unregulated with that information.

3971
05:11:15,070 --> 05:11:16,590
I mean, you were one?

3972
05:11:16,590 --> 05:11:22,570
Based on the different, now, the expenses in the regulated market that are non-loss-related

3973
05:11:22,570 --> 05:11:26,090
versus the expenses in the non-regulated market.

3974
05:11:26,550 --> 05:11:32,410
Based on the expenses that they use to determine what their rates are going to be, I'd

3975
05:11:32,410 --> 05:11:39,050
I would like to know whether or not the regulated companies and non-regulated companies have

3976
05:11:39,050 --> 05:11:41,730
this ability to have the same impact on them.

3977
05:11:42,330 --> 05:11:42,670
I understand.

3978
05:11:42,810 --> 05:11:46,490
Of course, since they don't file their rates with us, we can't tell you exactly how they

3979
05:11:46,490 --> 05:11:46,950
use the basis.

3980
05:11:47,150 --> 05:11:48,650
So how do we know this works?

3981
05:11:50,170 --> 05:11:54,250
I mean, I want to understand why you think this works, if you don't even know what

3982
05:11:54,250 --> 05:11:59,070
it is that they're using to determine what their rates are, and it's other 70 percent.

3983
05:11:59,070 --> 05:12:09,110
Now, if you have my experience with similar discussions and that was deals with nursing homes before the last session.

3984
05:12:11,670 --> 05:12:21,990
We had kind of the same scenario. There were some issues being debated and in cases where we had control over rates,

3985
05:12:21,990 --> 05:12:31,530
We approached the companies and asked them what they planned to do about their rates given the passage of the reforms.

3986
05:12:32,610 --> 05:12:42,410
We had an estimate of what we think the reforms were worth and we had discussions with the company and they did reduce their rates.

3987
05:12:43,010 --> 05:12:48,250
Okay, so in theory, based on this bill, have you had a similar conversation with the insurance industry?

3988
05:12:48,850 --> 05:12:52,290
Since you're now doing it for the insurance, I assume you're doing it directly with insurance

3989
05:12:52,290 --> 05:12:52,670
companies.

3990
05:12:52,870 --> 05:12:54,110
You're having dialogue with them.

3991
05:12:54,290 --> 05:13:01,310
Well, probably I have to wait until we know what reforms will pass, if any, and then we'll

3992
05:13:01,310 --> 05:13:02,090
have that conversation.

3993
05:13:02,650 --> 05:13:06,630
But I thought you said in theory you find out whether or not this will have some impact

3994
05:13:06,630 --> 05:13:12,830
on what you do, whether it will have some benefit or the reforms will be some benefit.

3995
05:13:12,830 --> 05:13:19,690
We can estimate the impact of the reforms on how losses may be reduced.

3996
05:13:20,370 --> 05:13:24,530
I understand how losses may be reduced. I want to know how the premiums are reduced.

3997
05:13:25,750 --> 05:13:34,810
I mean that's what we're trying to do is make insurance affordable for doctors so they can stay in business and provide healthcare.

3998
05:13:34,810 --> 05:13:43,170
And I want you to talk to me about how this legislation gets you to having a decrease in insurance premiums.

3999
05:13:43,390 --> 05:13:53,250
Well, the rate-regulate companies, depending on what reforms pass, we will have an idea what we think that should result in losses.

4000
05:13:53,830 --> 05:14:03,550
We will then approach these companies and ask them how they intend to lower their rates on a prospective basis to make sure that the savings are passed on to consumers.

4001
05:14:04,190 --> 05:14:05,850
The companies that are not meat regulated.

4002
05:14:07,110 --> 05:14:11,310
We're just so 70% of the industry, we're already admitting we have no, this would,

4003
05:14:11,870 --> 05:14:17,130
while they might have to follow these reforms, we have no assurances that they would even do.

4004
05:14:17,910 --> 05:14:18,930
Other than competition.

4005
05:14:19,610 --> 05:14:19,630
Huh?

4006
05:14:19,750 --> 05:14:20,510
Other than competition.

4007
05:14:21,590 --> 05:14:29,810
So we're really talking about 30% of the market that you, 30% of the industry that you actually work with at TDI, is that correct?

4008
05:14:30,770 --> 05:14:31,590
For medical malpractice.

4009
05:14:33,090 --> 05:14:41,530
Okay. So based on that 30%, you're going to go back and talk to them and ask if these reforms

4010
05:14:41,530 --> 05:14:48,590
are in place. What should we consider an appropriate rollback for them? Are you all going to find

4011
05:14:48,590 --> 05:14:50,010
what an appropriate rollback is?

4012
05:14:50,910 --> 05:14:55,770
I think it's going to end up where we will have our numbers and they'll have the

4013
05:14:55,770 --> 05:14:59,970
hours and we'll have to kind of

4014
05:15:00,000 --> 05:15:05,600
Bridge the difference. Okay, and when you're bridging the difference, is this administrative

4015
05:15:05,600 --> 05:15:10,100
thing that the commission is going to do with the carriers, or does that come back to the

4016
05:15:10,100 --> 05:15:14,520
legislature and we need to put a cap on that or a rollback? I mean, tell me how you envision

4017
05:15:14,520 --> 05:15:19,740
that process work. The current rate regulation laws allows for the commissioners to determine

4018
05:15:20,240 --> 05:15:25,580
that rates are excessive, whatever they found today, whatever they use today is excessive.

4019
05:15:26,620 --> 05:15:35,240
And at least based on experience in the past, that's a drastic change to the system, such

4020
05:15:35,240 --> 05:15:36,020
as tort reforms.

4021
05:15:36,560 --> 05:15:39,280
On a prospective basis, you expect losses to go down.

4022
05:15:40,520 --> 05:15:46,160
So that's when we will exercise our authority and say, you know what, your rates may be

4023
05:15:46,160 --> 05:15:50,180
excessive today, so we want some rate adjustments.

4024
05:15:50,480 --> 05:15:53,360
And in your judgment, what kind of timeline is that?

4025
05:15:55,060 --> 05:16:01,800
I suspect we're going to have a very good idea by the time this bill, if it's passed,

4026
05:16:02,320 --> 05:16:08,580
what we think the deduction loss is going to be, and it's not going to take us very long

4027
05:16:09,480 --> 05:16:11,000
to contact the companies.

4028
05:16:11,460 --> 05:16:16,100
So once you determine what the number should be, then you've got, what, six months,

4029
05:16:16,300 --> 05:16:22,580
30 days, how would you then determine whether you'd implement the right law?

4030
05:16:23,100 --> 05:16:23,820
We will,

4031
05:16:27,800 --> 05:16:36,920
the usual process, contact the companies and try to work it out outside the hearing process.

4032
05:16:37,820 --> 05:16:42,360
If that fails, then we would have to go to the State Office of Administrative Hearing

4033
05:16:42,360 --> 05:16:47,520
and produce evidence to say that DRAs are excessive.

4034
05:16:48,260 --> 05:16:50,240
Okay, and I appreciate that.

4035
05:16:50,400 --> 05:16:52,740
What is took through the timeline for that to occur?

4036
05:16:52,740 --> 05:16:59,820
He's going to depend on whether the companies are willing to how willing they are to work with us.

4037
05:17:00,500 --> 05:17:05,880
Okay. And I guess if you all have done this before where you've gone through the process

4038
05:17:05,880 --> 05:17:11,000
and typically how long does it take you to have a meeting and interaction with the company,

4039
05:17:11,480 --> 05:17:14,320
first determine their excessive rates, meet with the company.

4040
05:17:14,760 --> 05:17:20,500
After you meet with the company, discern that you can't get together, then file with the administrative.

4041
05:17:20,500 --> 05:17:22,600
So what's that time period usually?

4042
05:17:25,340 --> 05:17:30,120
It can take, it's tough to generalize because it's company by company.

4043
05:17:30,420 --> 05:17:30,680
Okay.

4044
05:17:30,820 --> 05:17:35,980
Sometimes it takes 30 days, sometimes it takes 180 days or 120 days.

4045
05:17:36,380 --> 05:17:36,640
Okay.

4046
05:17:37,620 --> 05:17:44,120
And after you go through that 180, 120 days that's based on a fine

4047
05:17:44,120 --> 05:17:46,960
and then the commission would then institute whatever the rate ought

4048
05:17:46,960 --> 05:17:49,240
to be based on what that finding is and how that works.

4049
05:17:50,360 --> 05:17:54,960
Most times, companies, at some point we get an agreement

4050
05:17:54,960 --> 05:17:57,560
and the companies will just on a going forward basis

4051
05:17:57,560 --> 05:18:01,160
implement new rates, which would include a rate reduction.

4052
05:18:02,280 --> 05:18:02,720
Okay.

4053
05:18:09,760 --> 05:18:10,420
Mr. Hardner?

4054
05:18:11,580 --> 05:18:16,880
I'm hearing that a big part of the recent dramatic increases are just due

4055
05:18:16,880 --> 05:18:19,580
to the rate rollbacks in playing catch up.

4056
05:18:19,820 --> 05:18:20,860
Does that make sense?

4057
05:18:23,560 --> 05:18:27,260
We can't give you a definitive answer because I don't think

4058
05:18:27,260 --> 05:18:28,500
We've actually looked at the issue.

4059
05:18:29,180 --> 05:18:32,160
I think there's probably some elements of rate catch-up.

4060
05:18:35,540 --> 05:18:40,440
And the indicator is the fact that over a 10-year average,

4061
05:18:40,880 --> 05:18:46,800
the Texas Met Malkeris have been paying out $0.50 more

4062
05:18:46,800 --> 05:18:50,280
than they're taking in premium every year.

4063
05:18:51,000 --> 05:18:54,360
And you can, I don't know if you have the exhibit,

4064
05:18:54,360 --> 05:19:01,580
it, but the commissioners in his handout did provide a tenure history of underwriting losses

4065
05:19:01,580 --> 05:19:10,280
and return on equity, both of which would indicate, well, it's clear the companies didn't

4066
05:19:10,280 --> 05:19:16,840
make money. And from that, I think you can surmise that their rates were not adequate

4067
05:19:17,260 --> 05:19:17,900
in those years.

4068
05:19:18,980 --> 05:19:24,360
You're not familiar with the concept of the impact of the rate rollback and, and, uh...

4069
05:19:24,360 --> 05:19:30,840
Well, I don't know. We, we've heard from carriers that the rate rollback that we priced,

4070
05:19:31,080 --> 05:19:33,360
we worked on the rate rollback in 1995.

4071
05:19:34,500 --> 05:19:36,100
We think we're right. They think we're wrong.

4072
05:19:36,480 --> 05:19:36,720
Right.

4073
05:19:37,280 --> 05:19:37,680
Uh...

4074
05:19:37,680 --> 05:19:40,900
I'm just trying to get a feel if anybody has any idea as to...

4075
05:19:41,460 --> 05:19:47,300
Well, perhaps this dramatic increase is going to taper down because we're catching up with where we should have been.

4076
05:19:49,800 --> 05:19:58,140
absent any other intervening factors. It's possible.

4077
05:20:00,820 --> 05:20:08,980
And along with what Representative Hartnett's talking about, was there some decision on insurance

4078
05:20:08,980 --> 05:20:14,680
carriers? Did they make a decision to do rollback? Did one year earlier today that there was

4079
05:20:14,680 --> 05:20:20,360
a decision that the one that carries decided to do a rollback so that they could try to

4080
05:20:21,380 --> 05:20:29,040
control the market or keep a lot of the market. Was that self-imposed rollback?

4081
05:20:29,740 --> 05:20:36,860
In 1995, the rollbacks were mandated on companies that were regulated. My understanding that

4082
05:20:36,860 --> 05:20:42,820
company that made the statement that they had to rollback rates, even though they were

4083
05:20:42,820 --> 05:20:50,960
not mandated is TMLT. And it's possible that because of the competitive force, when everyone

4084
05:20:50,960 --> 05:20:55,380
else is lowering their rates, if you want to stay in the market, you may rate-regulate it

4085
05:20:55,380 --> 05:20:59,100
or not rate-regulate it, you may have to do what the rest of the market does.

4086
05:20:59,720 --> 05:21:02,900
Okay, so that was a self-imposed rollback, right?

4087
05:21:05,640 --> 05:21:10,920
I think you may have asked them. It wasn't mandated by us, all by the legislature.

4088
05:21:10,920 --> 05:21:11,580
Thank

4089
05:21:16,790 --> 05:21:17,630
you gentlemen.

4090
05:21:21,710 --> 05:21:22,090
Okay.

4091
05:21:24,610 --> 05:21:28,810
Chair recognizes Dr. Antonio Falcone.

4092
05:21:31,650 --> 05:21:32,190
All right here.

4093
05:21:33,030 --> 05:21:36,150
You're going to testify for the bill.

4094
05:21:36,350 --> 05:21:41,250
Will you please tell us your name and who you're with, if anyone?

4095
05:21:41,930 --> 05:21:43,890
Yes, sir. My name is Antonio Falcone.

4096
05:21:44,370 --> 05:21:47,070
I'm a family physician from Red Grande City, Texas.

4097
05:21:47,710 --> 05:21:51,310
I'm here representing the Texas Medical Association.

4098
05:21:54,820 --> 05:22:01,020
I'd just like to make a couple of brief statements regarding the malpractice situation and how

4099
05:22:01,020 --> 05:22:02,980
it's impacted myself and my community.

4100
05:22:03,900 --> 05:22:08,180
I live in Grandies City, which is in Starr County, it's a small rural community.

4101
05:22:09,040 --> 05:22:14,800
We handle an emergency room that takes care of trauma in three counties.

4102
05:22:17,880 --> 05:22:23,440
And I'm very happy to know that you are working so hard to fix this completely broken

4103
05:22:23,440 --> 05:22:28,720
that is impacting our patients significantly in our emergency rooms.

4104
05:22:29,500 --> 05:22:37,020
This past fall, I was on the sideline of our high school football teams, one of the Friday Night Football games.

4105
05:22:38,380 --> 05:22:42,880
And a young man on the other team was hit on the head and went down.

4106
05:22:44,560 --> 05:22:49,460
When I got on the field to talk to him, he started convulsing, stopped breathing.

4107
05:22:50,740 --> 05:22:54,700
And luckily, because the EMS system was there and I had some other people to help me, we

4108
05:22:54,700 --> 05:22:59,080
were able to get an airway on him, get him to the hospital, make a diagnosis, a severe

4109
05:22:59,080 --> 05:23:01,140
head injury, and take care of him.

4110
05:23:03,000 --> 05:23:07,920
Within an hour and 10 minutes after he hit the ground, we already had everything taken

4111
05:23:07,920 --> 05:23:09,920
care of except that we needed to get him transferred.

4112
05:23:10,680 --> 05:23:16,300
And I'm sorry to say that because of the broken malpractice system in our state,

4113
05:23:17,000 --> 05:23:22,160
We had to transfer that young man to San Antonio to get his head injury taken care of.

4114
05:23:22,640 --> 05:23:23,800
And he was very lucky.

4115
05:23:23,980 --> 05:23:27,860
He was one out of or two out of three that survived this kind of injury.

4116
05:23:28,320 --> 05:23:33,160
I've been in the emergency room twice over my last 23 years when people had actually

4117
05:23:33,160 --> 05:23:38,620
died as we waited to try to get somebody transferred to a facility where we have trauma surgeons

4118
05:23:38,620 --> 05:23:43,560
that are willing to take patients and take care of them.

4119
05:23:43,560 --> 05:23:47,540
The medical liability crisis in South Texas is severe.

4120
05:23:49,200 --> 05:23:50,420
It is affecting patients.

4121
05:23:50,720 --> 05:23:56,920
Our patients are dying in the emergency rooms because we can't somebody to get Saudi to

4122
05:23:56,920 --> 05:23:57,640
take care of them.

4123
05:23:58,620 --> 05:24:05,100
And I just want to thank all of you for working so hard in trying to fix the system.

4124
05:24:06,020 --> 05:24:09,620
I know there's a lot of questions that you've had for a lot of people.

4125
05:24:10,480 --> 05:24:12,340
And I just appreciate that.

4126
05:24:12,340 --> 05:24:16,800
and I know the patients of the state of Texas will appreciate it once it's fixed.

4127
05:24:17,920 --> 05:24:21,580
Thank you doctor and just for the record you spoke on both

4128
05:24:22,220 --> 05:24:25,800
HJR3 and HB3. That's correct sir. Okay very good.

4129
05:24:30,220 --> 05:24:31,980
How many, how many witness affirmations do we have?

4130
05:24:32,360 --> 05:24:39,680
I want to, I want to thank you doctor for your

4131
05:24:40,820 --> 05:24:41,940
concise comments.

4132
05:24:44,320 --> 05:24:53,320
There are 40 people behind you that want to testify and as I said earlier if it's a general

4133
05:24:53,320 --> 05:24:56,460
statement we're going to limit you to two minutes.

4134
05:24:56,840 --> 05:25:02,180
If there is something specific we'll give you somewhere between three and five and we're

4135
05:25:02,180 --> 05:25:03,380
going to try to keep that hard and fast.

4136
05:25:03,860 --> 05:25:05,920
I know everyone has been very patient.

4137
05:25:05,920 --> 05:25:11,780
I had hoped that the panel would facilitate the ease of going through that testimony.

4138
05:25:12,420 --> 05:25:15,240
I think it did. It went a lot longer than it was my intent.

4139
05:25:15,600 --> 05:25:20,480
But I think we certainly benefited from that as a committee doing it that way

4140
05:25:20,480 --> 05:25:23,400
and asked a lot of really good questions.

4141
05:25:23,800 --> 05:25:29,800
But let's get through this and get you all home at a reasonable hour.

4142
05:25:30,940 --> 05:25:43,020
So, with all that in mind and Dr. Falcone's good example, let me call Mark Lanier who is

4143
05:25:48,010 --> 05:25:49,350
going to speak.

4144
05:25:50,650 --> 05:25:51,770
Mark, I guess there's...

4145
05:25:51,770 --> 05:25:52,570
I think it's a consequence.

4146
05:25:52,990 --> 05:25:53,890
I think it's a consequence.

4147
05:25:54,050 --> 05:25:57,110
Okay, Mark, I'm going to give you three to five minutes.

4148
05:25:57,310 --> 05:25:58,610
Thank you, Chairman.

4149
05:25:58,790 --> 05:25:58,930
Thank you.

4150
05:25:59,150 --> 05:26:00,030
And I appreciate it.

4151
05:26:00,030 --> 05:26:03,930
Mark, you have not indicated whether you're for against or neutral on the bill.

4152
05:26:04,650 --> 05:26:07,850
There are parts that I'm for, there are parts that I'm against, and there are parts that I'm neutral.

4153
05:26:08,670 --> 05:26:11,770
Okay, and you are speaking on HB3 and HDR3.

4154
05:26:11,950 --> 05:26:12,450
I'm working on it.

4155
05:26:12,750 --> 05:26:15,010
Especially HDR3, not as much as HB3.

4156
05:26:15,170 --> 05:26:17,410
Okay, well, I'm not sure how to...

4157
05:26:17,410 --> 05:26:18,310
I'll fill it out.

4158
05:26:18,830 --> 05:26:19,530
Take care of that.

4159
05:26:19,750 --> 05:26:21,010
It means you can't go wrong.

4160
05:26:21,170 --> 05:26:21,410
Okay.

4161
05:26:21,470 --> 05:26:23,270
You mark for, you mark against, you mark neutral.

4162
05:26:23,290 --> 05:26:27,190
Well, from California, I may take a stand earlier today, so...

4163
05:26:27,690 --> 05:26:29,370
I'll take a stand on each part of the bill.

4164
05:26:29,370 --> 05:26:33,790
All right, that you want me to tell us your name and my name is Mark Lanier.

4165
05:26:34,790 --> 05:26:37,130
I'm here as representing myself.

4166
05:26:37,650 --> 05:26:42,890
I'm a lawyer, 60% of my work is plaintiff's work, 40% of my work is defense work.

4167
05:26:43,530 --> 05:26:46,550
I get 4% of my income from medical malpractice cases.

4168
05:26:46,790 --> 05:26:49,430
I also represent doctors in medical malpractice cases.

4169
05:26:50,490 --> 05:26:53,150
I'm not, of course, say a medical malpractice lawyer.

4170
05:26:53,730 --> 05:26:59,350
Having said all of that, I am concerned because I believe that in the

4171
05:26:59,350 --> 05:27:02,030
the rush to push this bill through.

4172
05:27:02,730 --> 05:27:05,810
And I agree that we've got a problem that needs to be dealt with quickly.

4173
05:27:06,410 --> 05:27:10,370
But in that rush, I'm afraid we've got a bill that's going to have some unintended consequences.

4174
05:27:11,050 --> 05:27:16,650
That if we take just a little bit more of time, we can alleviate through processing

4175
05:27:16,650 --> 05:27:17,110
the bill.

4176
05:27:17,650 --> 05:27:20,730
I've got five of them that I'm just going to throw out there and I'm going to follow

4177
05:27:21,330 --> 05:27:23,750
my friend Joe Nixon's request for brevity.

4178
05:27:23,750 --> 05:27:29,290
Number one, I do believe this bill increases the profitability of abortions.

4179
05:27:29,610 --> 05:27:33,090
That is a serious issue with me, and it's one that I'd be glad to discuss.

4180
05:27:33,610 --> 05:27:40,710
Number two, I think this bill undervalues my wife, Becky, and I've said on that point.

4181
05:27:41,290 --> 05:27:47,030
Number three, I think this bill does shut down the courthouse for legitimate victims

4182
05:27:47,030 --> 05:27:48,030
and legitimate cases.

4183
05:27:48,490 --> 05:27:51,850
When I listened to the gentleman standing there with Michael or something, I didn't

4184
05:27:51,850 --> 05:27:56,290
never caught his last name. Talk about how plaintiff's lawyers get $400,000 when they

4185
05:27:56,290 --> 05:28:02,410
win under his illustration. And he only gets $120,000. He forgot to tell you that according

4186
05:28:02,410 --> 05:28:08,270
to the statistics that he's relying on, the plaintiff's lawyers lose 6 to 8 times

4187
05:28:08,270 --> 05:28:15,610
out of 10 and get 0 and actually lose the $1 to $200,000 they put into the case.

4188
05:28:16,510 --> 05:28:22,810
He gets paid $120,000 every time, when, lose, or draw, and puts no money in the case.

4189
05:28:23,530 --> 05:28:26,830
So the economics aren't quite what they've been portrayed to be today.

4190
05:28:29,270 --> 05:28:32,850
Our fourth example, there is an injustice in the system.

4191
05:28:33,070 --> 05:28:39,750
If justice means full compensation, and this is what Co-Chair Gatis or Vice-Chair Gatis

4192
05:28:39,750 --> 05:28:44,830
has indicated with some of his questions, we don't have a system where even economic

4193
05:28:44,830 --> 05:28:49,230
economic damages are dealt with justly, and this bill handicaps those.

4194
05:28:49,890 --> 05:28:54,910
Right now, attorney's fees generally get paid out of those non-economic damages.

4195
05:28:55,310 --> 05:29:00,410
But once you cap those non-economic damages, when a jury is not even allowed to know that

4196
05:29:00,410 --> 05:29:04,910
attorney's fees are coming out of the plaintiff's money, you've got an unintended consequence

4197
05:29:04,910 --> 05:29:09,430
with this bill of a lack of full justice for those folks.

4198
05:29:09,430 --> 05:29:15,950
Fifth example, in the death cases, now that you are rolling back to $500,000 in the death

4199
05:29:15,950 --> 05:29:21,750
case, and that does include all measure of damages, all measure of damages.

4200
05:29:22,730 --> 05:29:24,950
You've got an inadequate amount of justice.

4201
05:29:25,590 --> 05:29:28,710
My final points are not unintended consequences, but suggestions.

4202
05:29:30,010 --> 05:29:33,870
I listened to the representative really ask the question, well, what are we going to do

4203
05:29:33,870 --> 05:29:36,830
about the 60 to 80 percent of these cases that are no-pay cases?

4204
05:29:36,830 --> 05:29:41,970
They'll still be here, under this bed, they'll still be here because, as you have pointed

4205
05:29:41,970 --> 05:29:47,750
out last Wednesday, at least from my reading of the transcripts from last Wednesday, 4590

4206
05:29:47,750 --> 05:29:50,830
i-letters, these notice letters, are counted as claims.

4207
05:29:53,220 --> 05:29:57,880
And once those letters are sent and the medical records are received and the doctors and

4208
05:29:57,880 --> 05:29:59,980
the lawyers look at them to see whether or not anybody-

4209
05:30:00,000 --> 05:30:06,200
Everybody wants to invest their time and money in a case. Once those records come in, six to

4210
05:30:06,200 --> 05:30:11,240
seven to eight times, the case is not pursued, but the insurance company is still charged money.

4211
05:30:12,320 --> 05:30:17,380
There are some easy ways to fix this. Get rid of 45, 90 eye letters, and don't let a plaintiff

4212
05:30:17,380 --> 05:30:22,260
bring a case until a plaintiff has an expert witness in the right field that says based

4213
05:30:22,260 --> 05:30:27,440
upon the medical records, there's a case here. You'll get rid of 60 to 70 percent

4214
05:30:27,440 --> 05:30:30,300
of these immediately and save a lot of money.

4215
05:30:30,520 --> 05:30:31,880
Here's the second thing you could do.

4216
05:30:32,860 --> 05:30:36,620
Allow a jury to consider the issue of whether a lawsuit is frivolous.

4217
05:30:37,520 --> 05:30:40,820
And if a jury decides there's a frivolous lawsuit that's been filed,

4218
05:30:41,160 --> 05:30:44,980
the jury can assess or the judge can assess all appropriate attorney's fees

4219
05:30:44,980 --> 05:30:48,260
and expenses against the plaintiff for bringing the frivolous lawsuit

4220
05:30:48,260 --> 05:30:49,780
or against the plaintiff's lawyer.

4221
05:30:51,300 --> 05:30:55,020
Those kinds of things will fix this immediately if that's what the problem is.

4222
05:30:55,020 --> 05:30:59,700
And you don't have the unintended consequences that I fear might be there.

4223
05:31:00,020 --> 05:31:08,120
Another way to alleviate the unintended consequences in addition to those steps would be to set up caps that are elective in the sense that

4224
05:31:08,120 --> 05:31:15,560
if my wife who has a law degree and a master's in Spanish and international trade chooses instead to stay at home with my five kids,

4225
05:31:15,700 --> 05:31:19,520
which are her five kids too, I might add, chooses instead to stay at home,

4226
05:31:19,520 --> 05:31:27,660
If something tragic should happen to her, she's not worth less money because she chose

4227
05:31:27,660 --> 05:31:33,460
to stay at home, as opposed to someone who chose to instead do the law degree and pay

4228
05:31:33,460 --> 05:31:34,520
a housekeeper and a nanny.

4229
05:31:35,560 --> 05:31:36,940
Those are the unintended consequences.

4230
05:31:37,400 --> 05:31:41,060
I think there are some ways to fix the bill, and I would just urge you, I recognize

4231
05:31:41,060 --> 05:31:45,300
this is a priority item that needs to be dealt with quickly, but in the rush, please

4232
05:31:45,300 --> 05:31:53,020
don't overlook the unintended consequences and some better fixes. Thank you. That was 45, 100

4233
05:31:53,020 --> 05:31:59,640
seconds under five minutes. I timed it. Okay, we're going to mark you against the bill.

4234
05:32:01,960 --> 05:32:06,980
Yes, good provisions in the bill. That's because I didn't figure you needed the

4235
05:32:06,980 --> 05:32:10,200
coaching on that. I was just coming at it and trying to answer the other questions.

4236
05:32:10,200 --> 05:32:12,360
All right, thank you very much, Mr. President.

4237
05:32:12,480 --> 05:32:12,800
Thank you.

4238
05:32:13,140 --> 05:32:13,380
Okay.

4239
05:32:18,060 --> 05:32:25,480
Chair recognizes Thomas Permetti on H.J.R. 3 and H.B. 3.

4240
05:32:25,740 --> 05:32:28,020
It's indicated he's for the bill.

4241
05:32:29,040 --> 05:32:32,060
Please tell us your name and who you are with, Mr. Permetti.

4242
05:32:32,360 --> 05:32:33,680
My name is Tom Permetti.

4243
05:32:34,540 --> 05:32:36,720
I'm here on behalf of my hospital,

4244
05:32:37,520 --> 05:32:39,700
which is Christus St. John Hospital in Nassau Bay.

4245
05:32:39,700 --> 05:32:46,380
I'm also here on behalf of the Texas Hospital Association and the Catholic Health Association

4246
05:32:46,380 --> 05:32:47,580
of Texas.

4247
05:32:51,020 --> 05:32:58,420
I'm here really to bring my personal experience to bear and the experience of my organization

4248
05:32:58,420 --> 05:32:59,820
on really two issues.

4249
05:32:59,960 --> 05:33:07,300
The first is our experience with the escalating cost of professional liability insurance.

4250
05:33:07,300 --> 05:33:14,120
and I would then refer you to the exhibits as well, but I'll start with the experience of our hospital.

4251
05:33:14,400 --> 05:33:19,980
We're a 135-bed hospital, South Houston. That's a small hospital.

4252
05:33:22,280 --> 05:33:29,720
Our average cost per year in indemnity and loss adjustment expenses for the five-year period,

4253
05:33:29,720 --> 05:33:34,060
at 98 to 2002 is around $400,000 a year.

4254
05:33:35,460 --> 05:33:41,360
In our fiscal year of 2001, our claims experience was such that we enjoyed the benefit

4255
05:33:41,360 --> 05:33:48,440
of a $448,000 refund from the liability trust fund that is created for Krista's help.

4256
05:33:49,380 --> 05:33:55,080
Then really a short amount of time later, that being fiscal year 2004, we're expecting

4257
05:33:55,080 --> 05:34:05,260
that to go up to $1,300,000, which is an increase of over $1,700,000, which is pretty remarkable

4258
05:34:05,260 --> 05:34:09,920
in light of really the relatively modest amount of activity for the hospital.

4259
05:34:10,600 --> 05:34:16,620
And I would refer you to exhibits A and B. A being really a measure of the experience

4260
05:34:16,620 --> 05:34:21,240
of Christa's health overall, and when we have 30 hospitals, possibly in the state

4261
05:34:21,240 --> 05:34:30,600
of Texas. We've been here for over 130 years. We're well-established. And I think the data

4262
05:34:30,600 --> 05:34:39,100
speaks to itself. The liability access insurance charges went from a little over $2.7 million

4263
05:34:39,100 --> 05:34:47,940
in fiscal year 2000 to projected 2004 of $14.3 million, which is a 500 percent increase

4264
05:34:47,940 --> 05:34:52,400
in four years and you really have to add a little bit more and the story is actually worse

4265
05:34:53,000 --> 05:34:57,840
because the last two years our threshold went from 5 million to 10 million.

4266
05:34:58,380 --> 05:35:05,060
If we had kept it at the threshold of 5 million, that figure in fiscal year 2004 would be projected

4267
05:35:05,060 --> 05:35:11,940
to be $20 million which would make it an almost 800% increase in that amount of time.

4268
05:35:11,940 --> 05:35:17,680
And the exhibit D, I think, we have hospitals in Louisiana as well.

4269
05:35:18,180 --> 05:35:19,980
And I'll just highlight one figure for you.

4270
05:35:20,160 --> 05:35:28,220
In Texas, liability expenses are about 4% of our operating margin,

4271
05:35:28,360 --> 05:35:32,400
which exceeds the profit margin for hospitals across the country.

4272
05:35:33,040 --> 05:35:36,600
So any suggestion that's a slight or a significant number is,

4273
05:35:36,600 --> 05:35:39,640
It's really not that there's no variant fact.

4274
05:35:40,360 --> 05:35:48,680
By comparison, in Louisiana, using the same analysis, that's a 1.5 percent when measured

4275
05:35:48,680 --> 05:35:51,480
against the revenue of the hospital system.

4276
05:35:52,040 --> 05:35:55,300
The second issue, and I'll be very brief, is on the question of access.

4277
05:35:56,680 --> 05:36:02,120
As a hospital administrator, you know, who lives in my community, one of my great,

4278
05:36:02,120 --> 05:36:08,500
great concerns, things that keeps me up at night is my growing concern over our hospital's

4279
05:36:08,500 --> 05:36:12,800
ability to meet its mission in the community by having physicians covering the emergency

4280
05:36:12,800 --> 05:36:15,680
for on a 24-hour, seven-day, a week basis.

4281
05:36:16,320 --> 05:36:20,540
And I think you've heard anecdotal stories about physicians dropping, for example, obstetrical

4282
05:36:20,540 --> 05:36:21,260
privileges.

4283
05:36:21,700 --> 05:36:25,360
That is a real phenomena, and our community is relatively wealthy.

4284
05:36:25,940 --> 05:36:28,920
And that really mitigates a number of the other factors people cite.

4285
05:36:28,920 --> 05:36:35,180
This, in a number of cases I can test to, is specifically on the question of malpractice

4286
05:36:35,180 --> 05:36:36,320
and their concern.

4287
05:36:36,940 --> 05:36:43,180
And then we have within our system a number of environments where we've had real threats

4288
05:36:43,180 --> 05:36:49,980
of limiting service to the unavailability or inevitability of neurosurgeons and other

4289
05:36:49,980 --> 05:36:51,100
medical specialties.

4290
05:36:51,640 --> 05:36:54,380
And with those points made, I thank you for your attention.

4291
05:36:54,380 --> 05:36:58,200
I had one quick question, Ms. Primetti.

4292
05:37:00,040 --> 05:37:00,380
I understand.

4293
05:37:00,760 --> 05:37:03,080
Christus St. John's is a Catholic hospital?

4294
05:37:03,420 --> 05:37:03,620
Yes.

4295
05:37:03,880 --> 05:37:04,020
Okay.

4296
05:37:05,440 --> 05:37:14,700
As a Catholic health provider, do y'all have any opinion as to whether or not this

4297
05:37:14,700 --> 05:37:18,180
bill contravenes the social teachings of the Catholic Church?

4298
05:37:18,340 --> 05:37:22,640
Well, as a Catholic provider, we're governed by the ethical and religious directors of

4299
05:37:22,640 --> 05:37:23,260
the Catholic Church.

4300
05:37:23,260 --> 05:37:27,020
and I think that's pretty widely known, the impact on that.

4301
05:37:27,260 --> 05:37:30,620
We are owned by Christus Hell, which is a Catholic organization.

4302
05:37:31,160 --> 05:37:35,000
We are also members of the Catholic Health Association of Texas,

4303
05:37:35,160 --> 05:37:39,800
and we go through a very sincere discernment effort.

4304
05:37:40,080 --> 05:37:43,100
And I, as an individual, go through the same process.

4305
05:37:43,700 --> 05:37:46,080
And we look at the Catholic social justice teaching.

4306
05:37:46,660 --> 05:37:48,960
We also look at the ethical and religious directors.

4307
05:37:48,960 --> 05:37:55,900
and we try to pursue and discover any facts that would challenge our mission focus.

4308
05:37:56,520 --> 05:38:01,720
And part of this discernment, we actually called the Catholic Health Alliance of California.

4309
05:38:02,640 --> 05:38:05,160
We spoke to the California Alliance for Patient Protection.

4310
05:38:05,740 --> 05:38:11,740
We spoke to a number of other nationally based Catholic hospital companies.

4311
05:38:12,860 --> 05:38:18,540
With this question, which is are we going to directly or indirectly support an increase

4312
05:38:18,540 --> 05:38:21,780
in the number of abortions in Texas through this bill?

4313
05:38:22,400 --> 05:38:26,060
And on behalf of those organizations, I can address that question.

4314
05:38:26,340 --> 05:38:26,960
The answer is no.

4315
05:38:27,060 --> 05:38:32,000
We do not believe that there's any compelling information or data that would support the

4316
05:38:32,000 --> 05:38:34,380
notion or the association of those two facts.

4317
05:38:37,460 --> 05:38:38,080
Do you have a question?

4318
05:38:38,400 --> 05:38:38,500
Yes.

4319
05:38:39,080 --> 05:38:40,520
Yes, Ms. Davis.

4320
05:38:40,520 --> 05:38:50,990
I'm trying to understand in your third paragraph, relative to your liability coverage, it's funded

4321
05:38:50,990 --> 05:38:55,190
through Christus Health Liability, Tension Trust, is it your own trust fund?

4322
05:38:55,370 --> 05:38:56,050
Yes, it's a corporate.

4323
05:38:56,370 --> 05:39:01,750
Your own, okay, so you provide your own corporate entity, provides liability insurance too.

4324
05:39:02,410 --> 05:39:09,170
And so, as it relates to rates, are you able to tell me what precipitated your own

4325
05:39:09,170 --> 05:39:10,930
company to give you increased rates?

4326
05:39:10,930 --> 05:39:16,510
I mean, I want to understand this relationship, so if you could explain to me,

4327
05:39:16,910 --> 05:39:21,090
you say that you received a $448,000 refund from the trust,

4328
05:39:21,710 --> 05:39:25,790
so that's from Chris's Health Liability Retention Trust, is that correct?

4329
05:39:26,150 --> 05:39:26,330
Yes.

4330
05:39:26,890 --> 05:39:30,410
Okay, so you've got money back, did you have any claims?

4331
05:39:31,130 --> 05:39:37,550
Well, the driver that is driving our experience up is associated

4332
05:39:37,550 --> 05:39:40,770
with the really secondary insurance, the excess liability.

4333
05:39:41,510 --> 05:39:44,010
And if you go to exhibit A, it really ties to that.

4334
05:39:44,490 --> 05:39:49,230
We insure, self-insure up to, in the first three years,

4335
05:39:49,370 --> 05:39:51,090
we self-insure up to $5 million,

4336
05:39:51,210 --> 05:39:54,990
and we've recently extended that to $10 million.

4337
05:39:55,930 --> 05:39:57,670
And if you look at the data here,

4338
05:39:57,790 --> 05:39:59,510
and really tie it back to our experience,

4339
05:40:00,190 --> 05:40:02,670
the biggest reason why our experience has gone

4340
05:40:02,670 --> 05:40:05,570
for relatively small amount to a very,

4341
05:40:05,570 --> 05:40:13,070
for us a relatively large amount is the effect, the direct effect of the liability excess.

4342
05:40:13,590 --> 05:40:17,430
The fact that the, and that's brought on a commercial basis from outside providers,

4343
05:40:18,090 --> 05:40:22,530
the exponential growth in that aspect of it is the single biggest reason

4344
05:40:22,530 --> 05:40:25,170
why our hospital experience has risen so significantly.

4345
05:40:25,170 --> 05:40:29,490
And I got to ask you to say the, let me ask it a little different.

4346
05:40:29,730 --> 05:40:34,270
Are you telling me your Christmas liability insurance went up

4347
05:40:34,270 --> 05:40:38,270
because you have to buy it from an outside provider to sell to your hospital.

4348
05:40:38,410 --> 05:40:39,130
Is that what you're saying?

4349
05:40:39,190 --> 05:40:45,830
Well, we self-insure that we buy excess liability insurance in an event that there's a claim

4350
05:40:45,830 --> 05:40:48,210
or a judgment in excess of $5 million.

4351
05:40:49,710 --> 05:40:52,210
And we've recently raised that to $10 million.

4352
05:40:52,410 --> 05:40:58,530
So we self-insure, but in a catastrophic judgment, we buy protection insurance from a second,

4353
05:40:58,830 --> 05:41:00,430
you know, from a care.

4354
05:41:00,710 --> 05:41:03,410
Okay. And so I'm asking you, have you had claims?

4355
05:41:04,450 --> 05:41:04,930
Yes.

4356
05:41:05,590 --> 05:41:09,730
And so did it go beyond your first tier insurance and go to the second?

4357
05:41:09,930 --> 05:41:13,390
No, we've not had any of those, but we've, no, we've not.

4358
05:41:13,770 --> 05:41:14,250
Okay.

4359
05:41:14,510 --> 05:41:21,590
What has been your rate change based on you going from the first fine in where you self-insured

4360
05:41:21,590 --> 05:41:22,570
to your second tier?

4361
05:41:23,210 --> 05:41:24,530
What has been your rate change?

4362
05:41:25,770 --> 05:41:30,510
If I understand your question, if you look at the $1 million free, how much of that

4363
05:41:30,510 --> 05:41:37,090
is associated with the cost of the liability, the excess insurance?

4364
05:41:37,270 --> 05:41:37,950
Is that your question?

4365
05:41:38,110 --> 05:41:38,590
I'm sorry.

4366
05:41:39,510 --> 05:41:42,790
I was told that's about two-thirds of that expense is associated with that.

4367
05:41:44,010 --> 05:41:45,250
With the excess liability?

4368
05:41:45,450 --> 05:41:46,170
With the excess liability.

4369
05:41:46,710 --> 05:41:47,050
Okay.

4370
05:41:47,630 --> 05:41:54,170
And so the $448,000 debt, you get that return before you bought the excess liability?

4371
05:41:55,170 --> 05:41:59,250
We've had the $5 million excess liability coverage even within that year.

4372
05:41:59,890 --> 05:42:04,330
Okay, so $448,000 was just for your first policy.

4373
05:42:04,410 --> 05:42:07,350
The second policy is for you to experience the increase,

4374
05:42:07,590 --> 05:42:10,810
and you see it's about two-thirds of the $1.3 million.

4375
05:42:11,210 --> 05:42:13,410
You were at $400,000, is that right?

4376
05:42:14,090 --> 05:42:19,290
Well, yeah, we actually have a reserve method at the hospital.

4377
05:42:20,130 --> 05:42:22,390
We, fortunately, based on our claims history,

4378
05:42:22,590 --> 05:42:24,150
based on the number of factors,

4379
05:42:24,150 --> 05:42:29,050
had excess reserve in the year that we enjoyed, you know, a rebate.

4380
05:42:29,830 --> 05:42:32,250
So, I mean, it reflects all of that.

4381
05:42:32,450 --> 05:42:36,410
Okay, so you've not had any claims, so is that what you're saying?

4382
05:42:36,810 --> 05:42:37,050
No, no.

4383
05:42:37,050 --> 05:42:37,730
Have you had any claims?

4384
05:42:37,930 --> 05:42:44,270
In the same period, the total amount of the claims and the expenses associated with the claims activity

4385
05:42:44,270 --> 05:42:46,730
has averaged about $400,000 for the hospital.

4386
05:42:46,890 --> 05:42:51,030
Which is what it's being like, but your insurance jumped to 1.3.

4387
05:42:51,210 --> 05:42:52,050
Is that what you're telling me?

4388
05:42:52,170 --> 05:42:52,310
Sure.

4389
05:42:52,310 --> 05:42:58,510
So, without any claims, what any additional expenses you've had your insurance jump up.

4390
05:42:59,790 --> 05:43:04,150
So, you didn't have legal, you didn't have any legal cases that jumped it up is what

4391
05:43:04,150 --> 05:43:04,470
you're testing.

4392
05:43:04,830 --> 05:43:10,010
Our actual claims history is, it's actually gone down in the period that this,

4393
05:43:10,470 --> 05:43:14,930
So, we would approve that your testimony is your increase, your increase is just

4394
05:43:14,930 --> 05:43:19,650
out of an insurance increase, not based on anything with regard to claims or anything

4395
05:43:19,650 --> 05:43:20,570
that happened.

4396
05:43:20,570 --> 05:43:23,170
and you just ended up with the insurance company increased your rates?

4397
05:43:24,050 --> 05:43:30,390
I would say that's a fair observation that the driver is the excess liability, yeah.

4398
05:43:30,530 --> 05:43:33,550
Okay, and excess liability, you've not had claims there,

4399
05:43:33,610 --> 05:43:38,190
so there are not any legal fees associated with this cost?

4400
05:43:38,430 --> 05:43:41,850
Correct. We participate in a pool obviously of a number of hospitals

4401
05:43:41,850 --> 05:43:44,970
and obviously since the pool has risen so significantly,

4402
05:43:45,390 --> 05:43:50,190
either just by participating in that pool, our share of that has driven a significant increase in rates.

4403
05:43:50,190 --> 05:44:00,570
two-thirds of the 1.3, right? That's what you're saying. Okay, so I just want to be sure to

4404
05:44:00,570 --> 05:44:08,990
understand that your insurance, without any legal cases, any claims, your excess liability

4405
05:44:08,990 --> 05:44:17,310
increased about 800,000. That's probably reasonable, yeah. And I guess I'm trying to understand

4406
05:44:17,310 --> 05:44:22,850
And why do you think these legal remedies, if you haven't had any claims, why this fits

4407
05:44:22,850 --> 05:44:23,970
that problem?

4408
05:44:25,010 --> 05:44:29,250
Why wouldn't fixing this problem sound like you either need to go get another policy from

4409
05:44:29,250 --> 05:44:32,530
somebody else or you've just been gouged?

4410
05:44:33,310 --> 05:44:37,670
I mean, I'm trying to understand why this, there's a correlation between fixing this,

4411
05:44:37,850 --> 05:44:38,390
fixing that.

4412
05:44:38,610 --> 05:44:39,650
Your problem here.

4413
05:44:40,050 --> 05:44:43,690
Well, I mean, we participate in a global environment.

4414
05:44:43,690 --> 05:44:47,770
I mean, our work, you know, you have to understand insurance

4415
05:44:47,770 --> 05:44:49,910
is to look at the whole environment.

4416
05:44:50,270 --> 05:44:52,750
I mean, yeah, a $49,000,000 adjustment

4417
05:44:52,750 --> 05:44:54,230
against the hospital in Midland, Texas

4418
05:44:54,730 --> 05:44:58,290
has a direct impact on what St. John Hospital in Nassau Bay

4419
05:44:58,290 --> 05:44:59,970
pays for its ma...

4420
05:45:16,040 --> 05:45:20,140
Thank you. Thank you,

4421
05:45:22,600 --> 05:45:31,780
Ms. Permanente. Okay. Chair recognizes Marydale Peterson.

4422
05:45:32,520 --> 05:45:37,620
to speak in favor of HJR3 and HB3.

4423
05:45:45,150 --> 05:45:46,390
Thank you very much.

4424
05:45:46,930 --> 05:45:52,810
My name is Mary Gale Peterson and I'm a physician from Corpus Christi and I'm representing myself.

4425
05:45:53,610 --> 05:45:58,690
I'm a pediatric anesthesiologist and I've been in practice almost 20 years now

4426
05:45:58,690 --> 05:46:05,490
providing perioperative care for infants and children and some of them are a little bit bigger now

4427
05:46:05,490 --> 05:46:12,690
that we operate on infants that are less than a pound, smaller than my hand.

4428
05:46:14,210 --> 05:46:16,630
You know, we've really come a long way, I think,

4429
05:46:16,730 --> 05:46:19,670
in pediatric anesthesia and pediatric surgery.

4430
05:46:21,250 --> 05:46:24,370
Despite this, of course, there are some children that will die

4431
05:46:24,370 --> 05:46:27,150
from congenital anomalies, cancer, and trauma.

4432
05:46:28,270 --> 05:46:34,530
A couple of years ago, I decided to work part-time, going from 80 hours a week to about 40.

4433
05:46:34,530 --> 05:46:38,690
for family reasons and to decrease my liability exposure.

4434
05:46:39,770 --> 05:46:42,950
However, this year I may be forced to quit altogether.

4435
05:46:44,430 --> 05:46:48,930
Although I've never paid a claim, my insurance is doubling this year.

4436
05:46:50,290 --> 05:46:58,850
It's hard for me to justify staying in practice when I work at a children's hospital 65% of it's Medicaid.

4437
05:46:59,910 --> 05:47:02,910
Medicaid pays me $60 an hour

4438
05:47:04,850 --> 05:47:05,410
There

4439
05:47:07,550 --> 05:47:12,390
is a tremendous shortage in South Texas of pediatric anesthesiologists.

4440
05:47:12,970 --> 05:47:15,890
Actually, there's a national shortage, but it's worse in South Texas.

4441
05:47:17,150 --> 05:47:23,130
I do still have the challenge and excitement of working in the operating room, but I don't

4442
05:47:23,130 --> 05:47:26,870
think I can bear the cost and emotional burden of the potential lawsuits.

4443
05:47:27,950 --> 05:47:29,570
I will miss the operating room.

4444
05:47:29,570 --> 05:47:38,470
Currently I satisfy what my love is by going to Mexico on a regular basis.

4445
05:47:38,770 --> 05:47:42,270
I do anesthesia, for instance, in children with congenital heart disease.

4446
05:47:43,710 --> 05:47:49,810
I only get paid with the grateful embraces of the parents, but I don't worry about being sick.

4447
05:47:52,540 --> 05:47:53,940
You might ask, why am I here?

4448
05:47:54,440 --> 05:47:58,200
I've always been in the town, but I do have some selfish reasons.

4449
05:47:58,200 --> 05:48:04,560
I have two young boys who are interested in medicine and I want them to enjoy a fulfilling

4450
05:48:04,560 --> 05:48:09,960
career and I want to have compassionate, intelligent doctors taking care of me.

4451
05:48:11,100 --> 05:48:16,340
I hope we can create a fairer system that won't discourage our brightest and best of

4452
05:48:16,340 --> 05:48:17,040
the most positions.

4453
05:48:18,020 --> 05:48:24,120
I hope we can make sure that we can pass meaningful tort reform in House Bill 3, that the insurance

4454
05:48:24,120 --> 05:48:28,340
companies will also be held accountable to adjust our premiums.

4455
05:48:28,940 --> 05:48:32,120
I hope we can provide meaningful relief to the extraordinary premiums

4456
05:48:32,700 --> 05:48:35,980
that many of my colleagues currently bear. Michael Burke,

4457
05:48:36,260 --> 05:48:40,120
pediatric neurosurgeon, he's paying $113,000 a year

4458
05:48:40,120 --> 05:48:44,440
for a $200,000 policy. Christine Canterbury,

4459
05:48:45,000 --> 05:48:47,180
OBGYN, she's paying

4460
05:48:47,800 --> 05:48:52,080
$100,000 a year for a $200,000 policy with

4461
05:48:52,080 --> 05:48:58,280
a $10,000 deductible. These are the specialists I want treating my family, and I don't want

4462
05:48:58,280 --> 05:49:01,410
them to leave. Thank you, Doctor.

4463
05:49:02,690 --> 05:49:08,290
Any questions? Just a comment, which Mary Dow Peterson, thank you very much for coming

4464
05:49:08,290 --> 05:49:15,550
down here. We do appreciate the time and energy that took to come be here today and share

4465
05:49:15,550 --> 05:49:19,910
this with us. Well, I appreciate all the work that this group is doing to try to

4466
05:49:19,910 --> 05:49:20,790
a major problem.

4467
05:49:22,310 --> 05:49:23,390
Just a good question.

4468
05:49:23,570 --> 05:49:23,870
Dr. Peterson?

4469
05:49:24,130 --> 05:49:24,230
Yes.

4470
05:49:25,730 --> 05:49:26,230
Yes, sorry.

4471
05:49:26,790 --> 05:49:27,850
You get to have a question from Dr. Peterson.

4472
05:49:27,850 --> 05:49:28,570
Quick question.

4473
05:49:29,350 --> 05:49:30,630
Who's your insurance company?

4474
05:49:30,770 --> 05:49:32,490
Is it the same for all these doctors?

4475
05:49:32,910 --> 05:49:33,430
Well, no.

4476
05:49:33,650 --> 05:49:34,830
I have medical protective now.

4477
05:49:34,910 --> 05:49:37,110
I used to work with the University who is self-insured.

4478
05:49:38,210 --> 05:49:40,250
But I have medical protective now.

4479
05:49:40,350 --> 05:49:42,350
There's really only three carriers such in the state.

4480
05:49:42,830 --> 05:49:45,550
API was the one that insured Dr. Canterbury.

4481
05:49:46,670 --> 05:49:51,290
Michael Barks, a pediatric neurosurgeon, has had to go to the high-risk pool.

4482
05:49:52,950 --> 05:49:56,410
A lot of the doctors and corporates have had to go to the high-risk pools.

4483
05:49:56,910 --> 05:49:59,450
They're no longer covered by those through nature carriers,

4484
05:49:59,630 --> 05:50:02,250
which is GMLT, API Medical Protective.

4485
05:50:08,190 --> 05:50:11,010
I'm going to have an OBGYN, so I'm going to have to go to the neurosurgeon.

4486
05:50:11,950 --> 05:50:19,390
You know, my feeling is if we lose OBs, women are not going to quit having babies.

4487
05:50:19,390 --> 05:50:23,350
There's someone else that's going to be delivering these babies with things they will get no

4488
05:50:23,350 --> 05:50:24,150
prenatal care.

4489
05:50:24,630 --> 05:50:28,950
It means we're going to see more defects, and then that's where you come in.

4490
05:50:29,190 --> 05:50:31,130
Could you address that a little bit with some of that?

4491
05:50:31,130 --> 05:50:31,290
Yes.

4492
05:50:31,450 --> 05:50:34,330
And Kristin Shana Berry wanted to be here, but she just couldn't make it.

4493
05:50:34,350 --> 05:50:37,770
I do have a letter that I can give you that she did write.

4494
05:50:38,670 --> 05:50:42,250
We have seen, you know, many of the OBs stopped their OB practice.

4495
05:50:42,450 --> 05:50:45,530
They're still in GYN, and then we've seen some of it quit.

4496
05:50:46,850 --> 05:50:52,930
And, you know, in some of them, I mean, I don't know what we're going to do because, you know,

4497
05:50:53,090 --> 05:50:58,710
we have, and the other problem is we have, you know, when women have problems during their pregnancy

4498
05:50:58,710 --> 05:51:02,390
and need other specialists, they can't receive that on a corpus Christi anymore.

4499
05:51:03,350 --> 05:51:09,930
The physicians that practice in pulmonary medicine and other types of specialties have said it's

4500
05:51:09,930 --> 05:51:12,610
too high risk for them to take care of those women.

4501
05:51:12,610 --> 05:51:17,710
And so they're now being transported to San Antonio or Houston, and our community,

4502
05:51:18,210 --> 05:51:22,670
that specialized care that was available at a very high level is no longer there.

4503
05:51:23,610 --> 05:51:26,690
You know, and we've had bad encounters with that.

4504
05:51:26,810 --> 05:51:31,250
We've had one, you know, baby that's died as a result of that, and one woman that,

4505
05:51:31,270 --> 05:51:34,110
you know, went through a lot with her pregnancy because she couldn't get

4506
05:51:34,110 --> 05:51:35,170
that specialized care.

4507
05:51:35,830 --> 05:51:36,510
Well, and then?

4508
05:51:36,690 --> 05:51:38,730
Corp is not exactly a rural community.

4509
05:51:39,130 --> 05:51:40,190
We're not a rural community.

4510
05:51:40,190 --> 05:51:44,170
They were 300,000 people and we serve as 500,000.

4511
05:51:44,270 --> 05:51:50,330
Well, of course, another problem is that they are by OB is responsible to the age of the child

4512
05:51:50,330 --> 05:51:50,970
is age what?

4513
05:51:51,290 --> 05:51:55,710
18 plus 2, that's true with my specialty as well, pediatric anesthesia.

4514
05:51:56,670 --> 05:52:01,450
And I'm just really worried about women having their babies delivered by people who are

4515
05:52:01,450 --> 05:52:07,290
not getting prenatal care and then the child, their greater instances of birth defects

4516
05:52:07,290 --> 05:52:17,910
And then the state actually has ended up paying more money into the care of children that could have otherwise been taken care of if they get good medical care from the beginning.

4517
05:52:18,310 --> 05:52:20,150
That's exactly right. Thank you.

4518
05:52:24,610 --> 05:52:26,390
Doctor, have you always practiced in corpus?

4519
05:52:27,030 --> 05:52:27,570
Yes, I have.

4520
05:52:28,550 --> 05:52:33,850
I'll top your head just thinking back. When did medical malpractice rates really get to be an issue for you?

4521
05:52:33,970 --> 05:52:36,650
I mean, I know you never want to pay them, but...

4522
05:52:36,650 --> 05:52:43,550
Well, you know, I would say probably in about the last six years or so, five or six years,

4523
05:52:44,070 --> 05:52:49,510
you know, there's something a little bit more insidious in that it's not just the economic part.

4524
05:52:49,990 --> 05:52:54,070
What's really affected our community is the emotional part for the physicians.

4525
05:52:55,030 --> 05:52:58,090
You know, as Dr. Burke says, our pediatric neurosurgeon, he says,

4526
05:52:58,150 --> 05:53:01,770
I get to spend my two-week vacation every year in the courtroom.

4527
05:53:02,750 --> 05:53:08,970
And, you know, some of the case, one of the cases I was sued on, I was not even sued for medical malpractice.

4528
05:53:09,090 --> 05:53:16,430
I was sued for malicious intent and civil conspiracy because I wrote a letter to child protective services at their request.

4529
05:53:17,070 --> 05:53:31,750
That took five years to resolve and had to go, you know, we got a motion for summary judgment and it went to

4530
05:53:31,750 --> 05:53:37,190
So the lawyers may say, oh, that's one case, but to us, it's not one case, it's ten cases.

4531
05:53:37,650 --> 05:53:42,870
Because it takes ten of us out of our practices, it takes ten of us paying our defense costs.

4532
05:53:43,530 --> 05:53:46,010
And so, you know, he may not even be involved in it.

4533
05:53:46,090 --> 05:53:51,450
Dr. Canberra was sued in a case where he wasn't even in town yet to practice medicine.

4534
05:53:52,250 --> 05:53:55,230
And it took months and months to finally get this resolved.

4535
05:53:55,590 --> 05:53:59,350
We finally got a judge to sanction, that's the first sanction that's ever been given,

4536
05:53:59,350 --> 05:54:01,650
and to sanction that attorney for doing that.

4537
05:54:02,370 --> 05:54:04,910
I mean, you know, talk about federal lawsuits.

4538
05:54:05,350 --> 05:54:05,990
We're seeing it.

4539
05:54:06,810 --> 05:54:07,630
Thank you.

4540
05:54:11,850 --> 05:54:14,850
Chair recognizes Dr.

4541
05:54:17,090 --> 05:54:20,130
Vincente Juan, who will speak

4542
05:54:20,130 --> 05:54:23,850
in favor of HB3 and HJR3.

4543
05:54:24,390 --> 05:54:25,090
Dr. Juan.

4544
05:54:25,310 --> 05:54:25,670
Good morning.

4545
05:54:27,110 --> 05:54:28,270
Tell us your name.

4546
05:54:29,050 --> 05:54:30,590
My name is Vicente Juan.

4547
05:54:30,590 --> 05:54:34,310
I have lived in practice in the Corpus Christi for the past 20 years.

4548
05:54:35,390 --> 05:54:42,570
In the past few years we have seen an exponential increase in the number of malpractice liability cases

4549
05:54:42,570 --> 05:54:47,050
that has been accompanied by a resultant increase in our premiums.

4550
05:54:47,090 --> 05:54:52,150
This has caused an exodus of very high, very qualified physicians from our town.

4551
05:54:53,110 --> 05:54:58,390
I am here on behalf of my family, my friends, and my colleagues from USS County

4552
05:54:58,390 --> 05:55:04,250
because we have had a real deterioration in the accessibility to medical care in our community.

4553
05:55:05,130 --> 05:55:09,210
In my specialty, we have gone from 24 to 15 general surgeons.

4554
05:55:09,930 --> 05:55:12,930
In neurosurgery, we have gone from eight to three neurosurgeons.

4555
05:55:13,510 --> 05:55:16,030
We are down to a single infectious disease specialist.

4556
05:55:16,730 --> 05:55:19,390
We have two practicing endocrinologists.

4557
05:55:20,090 --> 05:55:23,470
This is in a town that draws from over 500,000 people

4558
05:55:23,470 --> 05:55:28,370
and is endemic with obesity and diabetes and these resulting problems.

4559
05:55:29,650 --> 05:55:34,550
To expanding on Dr. Peterson has said, we have emergency rooms that do not have full coverage

4560
05:55:34,550 --> 05:55:39,650
from anesthesia, do not have full coverage for orthopedic surgery.

4561
05:55:39,830 --> 05:55:42,730
They have 15, 18 nights a month what they do not have.

4562
05:55:43,210 --> 05:55:45,410
This is in town and these are major hospitals.

4563
05:55:46,450 --> 05:55:48,670
The same hospital does not have neurosurgical coverage.

4564
05:55:48,870 --> 05:55:51,710
If you get a neurosurgical injury there, it has to go to another hospital.

4565
05:55:51,710 --> 05:55:56,130
So we are being impacted greatly by these problems.

4566
05:55:57,930 --> 05:56:00,370
We need meaningful reforms.

4567
05:56:01,670 --> 05:56:04,490
It is nice that we're starting with a micro-type model.

4568
05:56:04,970 --> 05:56:09,670
We strongly believe that social package will not hinder access to the course and has been suggested.

4569
05:56:10,310 --> 05:56:16,510
And this is evident by the 1,000% increase in medical cases in California over the past decade.

4570
05:56:16,510 --> 05:56:20,190
You guys heard from Dr. Anderson from the doctor's company here.

4571
05:56:21,850 --> 05:56:27,310
The California doctors are sued 50 percent more frequently than doctors in most other

4572
05:56:27,310 --> 05:56:28,150
parts of the country.

4573
05:56:28,850 --> 05:56:33,650
At the same time, the patients are getting an average of 17 percent more money in their

4574
05:56:33,650 --> 05:56:34,110
awards.

4575
05:56:34,750 --> 05:56:39,470
On a $1 million award, they're getting $760,000 versus $600,000.

4576
05:56:39,810 --> 05:56:44,070
The cases are being resolved faster, and above all, they are preserving their access

4577
05:56:44,070 --> 05:56:46,790
and they're preserving the quality of their medical care.

4578
05:56:47,390 --> 05:56:51,430
So you see, as physicians, we do not want the injured

4579
05:56:51,430 --> 05:56:52,290
uncompensated.

4580
05:56:52,610 --> 05:56:54,290
We want fair and prompt compensation

4581
05:56:54,290 --> 05:56:55,470
for the injured people.

4582
05:56:56,450 --> 05:56:59,710
And we not only need medical malpractice reform,

4583
05:57:00,170 --> 05:57:03,030
we need legal malpractice, and we need judicial malpractice

4584
05:57:03,030 --> 05:57:03,430
reform.

4585
05:57:03,950 --> 05:57:07,410
And we hope that you all will consider this.

4586
05:57:07,730 --> 05:57:09,810
Just me, Davis, we need legal malpractice reform.

4587
05:57:09,970 --> 05:57:10,610
I promise you.

4588
05:57:14,800 --> 05:57:19,400
When this system collapses, the people that are going to be more affected are the poor

4589
05:57:20,080 --> 05:57:21,860
and the people that are economically disadvantaged.

4590
05:57:22,600 --> 05:57:27,680
The people that have the facilities to travel to the doctors in Houston and Dallas will

4591
05:57:27,680 --> 05:57:29,660
not suffer like the majority of our patients.

4592
05:57:30,220 --> 05:57:36,560
So we are very thankful that you are working on this project and in anything that we can

4593
05:57:36,560 --> 05:57:38,700
help you, we will continue to do so.

4594
05:57:39,120 --> 05:57:39,920
Dr. Ron, thank you.

4595
05:57:40,080 --> 05:57:40,720
Thank you very much.

4596
05:57:43,570 --> 05:57:54,830
Chair recognizes Dr. Jerry Hunziker who will testify for HDR3 and HP3.

4597
05:57:57,090 --> 05:57:58,390
Thank you Chairman, members of the committee.

4598
05:57:58,810 --> 05:58:00,730
Thank you all very much for allowing me to rag my tongue.

4599
05:58:01,710 --> 05:58:02,650
I'm a physician.

4600
05:58:02,890 --> 05:58:03,910
My name is Jerry Hunziker.

4601
05:58:04,050 --> 05:58:04,990
I'm from Corpus Christi.

4602
05:58:05,490 --> 05:58:06,590
Can you talk to name, please?

4603
05:58:07,650 --> 05:58:08,390
I thought I just did.

4604
05:58:08,910 --> 05:58:10,430
Jerry Hunziker, I'm sorry.

4605
05:58:11,010 --> 05:58:12,130
I'm rather than myself.

4606
05:58:12,230 --> 05:58:12,710
I apologize.

4607
05:58:14,790 --> 05:58:16,490
You're very careful about something.

4608
05:58:16,850 --> 05:58:17,590
That's quite a lot.

4609
05:58:18,030 --> 05:58:19,410
I've got to mind your piece in case.

4610
05:58:20,630 --> 05:58:25,510
Now my purpose for being here is to support House Bill 3 and HRR 3.

4611
05:58:26,310 --> 05:58:27,590
Mine is self-serving.

4612
05:58:28,250 --> 05:58:31,990
And we've already heard the testimony of the other two physicians from Corpus Christi.

4613
05:58:32,430 --> 05:58:35,250
I mean what Dr. Peterson talks about.

4614
05:58:36,130 --> 05:58:40,350
Dr. Canterbury's giving up OB is very real.

4615
05:58:40,350 --> 05:58:45,850
In fact, she's the third obstetrician that's under 40 that has quit OB.

4616
05:58:46,470 --> 05:58:50,150
These people have been in practice for less than six years, most of them, and they're quitting

4617
05:58:50,150 --> 05:58:52,490
OB because they can't stand it.

4618
05:58:52,830 --> 05:58:54,990
I'm worried about for five reasons.

4619
05:58:55,450 --> 05:58:56,290
I have five children.

4620
05:58:58,530 --> 05:59:01,210
And we are now at the crunch time.

4621
05:59:01,390 --> 05:59:04,850
One more neurosurgeon, and we don't have 24-7 neurosurgery coverage.

4622
05:59:05,290 --> 05:59:08,930
My eldest daughter starts arriving next year, something you all should all be concerned

4623
05:59:08,930 --> 05:59:19,030
about. And without 24-7 neurosurgery coverage, I'm concerned what will happen to her if there

4624
05:59:19,030 --> 05:59:23,570
is a close-head injury, something that would be relatively minor, but there's no neurosurgery

4625
05:59:23,570 --> 05:59:28,750
to provide it. I've been very impressed by the testimony I've heard and by the provisions

4626
05:59:28,750 --> 05:59:33,550
in the bill. I think they'll go a long way toward alleviating the greatest problem

4627
05:59:33,550 --> 05:59:37,570
that I would, what I think is the greatest problem with malpractice and that is the frivolous

4628
05:59:38,090 --> 05:59:40,070
nature of the majority of the lawsuits.

4629
05:59:41,090 --> 05:59:46,010
If I lost six out of every eight patients I treated, people would think there's something

4630
05:59:46,010 --> 05:59:46,890
wrong with me.

4631
05:59:47,550 --> 05:59:53,350
Now, if an attorney is taking eight cases to court and losing six of them, I would question

4632
05:59:53,830 --> 05:59:59,050
were those 60 lost, did they have merit, or and did the two of you win were they

4633
05:59:59,050 --> 05:59:59,870
They're really...

4634
06:00:00,000 --> 06:00:04,380
Did they have merit, or were they just tragic unintended consequences or

4635
06:00:05,500 --> 06:00:07,420
unpreventable consequences? They're deformed baby.

4636
06:00:09,920 --> 06:00:14,960
Something you can't do anything about. Certainly the obstetrician going in there doesn't intend to deliver a deformed baby.

4637
06:00:15,340 --> 06:00:17,020
Sometimes God takes his own way.

4638
06:00:17,960 --> 06:00:24,600
One thing I have not seen addressed in the current legislation that I would strongly ask all to consider addressing

4639
06:00:24,600 --> 06:00:29,660
is some mechanism to create transparency in the insurance rates.

4640
06:00:30,360 --> 06:00:32,440
We have the problem in the homeowners bill.

4641
06:00:32,980 --> 06:00:38,700
My concern is we go through all of this in an effort to lower the malpractice premiums

4642
06:00:38,700 --> 06:00:44,700
so that some of the tertiary subspecialists can practice and can afford to practice.

4643
06:00:45,440 --> 06:00:49,500
And yet then also in rate guys, we got to wait 10 years to see how this plays out

4644
06:00:49,500 --> 06:00:50,900
before we can look at the rates.

4645
06:00:51,780 --> 06:00:52,880
I would ask that you do that.

4646
06:00:52,880 --> 06:00:59,140
I would also humbly ask that you strongly consider keeping House Bill 3 as a standalone

4647
06:00:59,140 --> 06:00:59,700
bill.

4648
06:01:00,460 --> 06:01:04,980
In the legislative process, there always seems to be this move to take a bill for something

4649
06:01:04,980 --> 06:01:09,680
that I consider a critical emergency, and that great many people do, and dump it into

4650
06:01:09,680 --> 06:01:10,320
other bills.

4651
06:01:11,160 --> 06:01:14,500
Now sometimes that's to pull along one bill or push along another.

4652
06:01:15,600 --> 06:01:20,200
Medical malpractice needs to remain a standalone bill, and I certainly hope you'll consider

4653
06:01:20,200 --> 06:01:20,480
that.

4654
06:01:20,480 --> 06:01:21,900
Thank you very much.

4655
06:01:22,880 --> 06:01:24,220
Thank you, Dr. Hunziger.

4656
06:01:24,700 --> 06:01:27,680
You know, just a quick response.

4657
06:01:28,460 --> 06:01:30,280
We have a whole other committee called insurance.

4658
06:01:32,020 --> 06:01:39,020
And John Smithy over there and his crew are working hard to do 50 other pieces of the puzzle.

4659
06:01:39,140 --> 06:01:40,540
There's really kind of three pieces of this puzzle.

4660
06:01:40,720 --> 06:01:42,720
One is of four medical examiners.

4661
06:01:43,000 --> 06:01:45,120
One is this and one is their deal.

4662
06:01:45,400 --> 06:01:49,080
And I understand that there's a lot of discussion about the overlap.

4663
06:01:49,080 --> 06:01:57,420
But, you know, I'll show you that John Smithy and his crowd are trying to show up the other part of what you've been talking about.

4664
06:01:57,700 --> 06:01:58,920
Thank you. Thank you, Doug.

4665
06:01:58,940 --> 06:01:59,700
Thank you all for your time.

4666
06:02:02,790 --> 06:02:07,290
Okay. Yeah, the chair recognizes Steve Warner.

4667
06:02:11,880 --> 06:02:15,440
Speak in favor of HB3 and HJR3.

4668
06:02:16,600 --> 06:02:21,760
Today I'm a state lawyer, I'm the CEO of Corpus Christi Medical Center, I'm representing

4669
06:02:21,760 --> 06:02:26,340
Corpus Christi Medical Center, but I like to talk about my doctors.

4670
06:02:27,480 --> 06:02:31,940
And as you can see, there's a sense of urgency in Corpus Christi.

4671
06:02:33,040 --> 06:02:37,260
This is a sense of urgency that probably spread across the state if nothing is done.

4672
06:02:37,940 --> 06:02:43,960
I'm here today to thank you people for what you are doing in this legislation and

4673
06:02:43,960 --> 06:02:50,820
played for your support. I was the organization that sponsored the Day of Awareness in April,

4674
06:02:51,560 --> 06:02:59,120
where hundreds of doctors walked in a peaceful demonstration to express their concern about

4675
06:02:59,120 --> 06:03:03,420
what's happening in Corpus Christi. And let me tell you, as an administrator, it's a frightening

4676
06:03:03,420 --> 06:03:08,760
thing to see hundreds of doctors and white lab coats standing outside your facility.

4677
06:03:09,820 --> 06:03:14,740
and we were fully staffed in the emergency room. We were there to provide for the community,

4678
06:03:15,280 --> 06:03:17,920
but we were also there to support them in making a statement.

4679
06:03:21,440 --> 06:03:23,280
As we evolved to that point,

4680
06:03:23,460 --> 06:03:28,360
I had seen the doctors in the lobster pod legislation for years, and I was wondering

4681
06:03:28,360 --> 06:03:33,580
when it was going to grow up, and when you see the physicians taking an action like that,

4682
06:03:33,960 --> 06:03:38,500
you know that the lines have crossed. And so the conversations in the doctors'

4683
06:03:38,500 --> 06:03:46,880
were with this most recent increase in premiums, and we did talk about malpractice and malpractice

4684
06:03:46,880 --> 06:03:53,720
insurance premiums as two issues. They were rating themselves after they got through with

4685
06:03:53,720 --> 06:04:00,180
a lot of frustration and anger of how many visits they needed to do incrementally to

4686
06:04:00,180 --> 06:04:07,220
pay their offset, their increase in premiums, and the equation just didn't add up. For

4687
06:04:07,220 --> 06:04:11,380
eight of my physicians have done that up, and they're leaving. They've left, but they've

4688
06:04:11,380 --> 06:04:16,820
leaving, they're leaving across this country. They're not leaving the other parts of the

4689
06:04:16,820 --> 06:04:23,760
state. They're leaving out of the state. We're losing native Texans, trained in Texans, to

4690
06:04:23,760 --> 06:04:29,080
go to Minnesota. Something's wrong when the Texas doctor has to go to Minnesota to

4691
06:04:29,080 --> 06:04:35,280
practice. It's just not the right thing. It's hard to replace these doctors, and

4692
06:04:35,280 --> 06:04:41,280
we just have a concern. I mean by and large we have to be there for the community and you

4693
06:04:41,280 --> 06:04:49,340
have seen the sense of urgency that my physicians are portraying. It is very, very real. So we

4694
06:04:49,340 --> 06:04:57,300
encourage you on this legislation. I wish you guys could have seen the doctors and I

4695
06:04:57,300 --> 06:05:03,020
encourage you, which I have done in this legislation, the part that they talked to

4696
06:05:03,020 --> 06:05:04,880
about is their premiums.

4697
06:05:06,260 --> 06:05:13,380
We also ask, as part of this legislation, continue to dialogue on rollbacks, on insurance

4698
06:05:13,380 --> 06:05:14,140
premiums.

4699
06:05:14,140 --> 06:05:20,260
We don't know solutions, but I know that my doctors have to have help, real economic

4700
06:05:20,260 --> 06:05:23,160
help, and some of the increases that they've seen.

4701
06:05:23,840 --> 06:05:29,080
So we have a tremendous piece of legislation that this results in risk abatement, help

4702
06:05:29,080 --> 06:05:32,040
those guys out, or find a way to help them out.

4703
06:05:32,040 --> 06:05:34,720
And with that, I just thank y'all very much.

4704
06:05:35,260 --> 06:05:36,320
Appreciate being here.

4705
06:05:36,840 --> 06:05:37,800
Thank you very much.

4706
06:05:39,260 --> 06:05:41,260
I would thank you.

4707
06:05:42,060 --> 06:05:50,460
Chair recognizes Dr. John Durand speaking favor of HB3 and HR3.

4708
06:05:51,320 --> 06:05:54,140
I understand that you need to get back to Fort Worth.

4709
06:05:54,500 --> 06:05:55,840
I've got a sick one at home.

4710
06:05:55,920 --> 06:05:57,380
Okay, we're going to get you out of here, Doc.

4711
06:05:58,180 --> 06:05:59,580
I'm Dr. John Durand.

4712
06:05:59,580 --> 06:06:05,680
And I'm here from the TMN, from the Tarrant County Medical Society, where I serve as chairman

4713
06:06:05,680 --> 06:06:07,660
of the Medical Liability Reform Committee.

4714
06:06:08,200 --> 06:06:11,860
You know, I'm not a politically active guy, but I've become one over this issue.

4715
06:06:12,380 --> 06:06:16,160
Something happened to me a few months back.

4716
06:06:16,340 --> 06:06:20,120
I had a young man sitting in my office with hypertrophic cardiomyopathy and aortic valve

4717
06:06:20,120 --> 06:06:22,300
disease, and he needed an operation.

4718
06:06:23,160 --> 06:06:26,760
But the man who was best suited to do his operation had quit.

4719
06:06:27,460 --> 06:06:35,100
Dr. Bob Giehe had thrown in the towel after a distinguished career in his very peak of practice,

4720
06:06:35,860 --> 06:06:39,540
one of Texas's clearly finest cardiac surgeons.

4721
06:06:40,040 --> 06:06:45,420
This is not just a rural problem, this is happening across the state and across all

4722
06:06:45,420 --> 06:06:46,780
spectrums of specialties.

4723
06:06:47,320 --> 06:06:48,320
Ask, Bob, what happened?

4724
06:06:48,500 --> 06:06:49,440
Why did you quit?

4725
06:06:49,700 --> 06:06:50,140
What's wrong?

4726
06:06:50,720 --> 06:06:56,040
He said, I've been sous-gain, I've been to court twice, I've won both cases.

4727
06:06:56,040 --> 06:06:58,420
He says, I can't stand to do this anymore.

4728
06:07:01,140 --> 06:07:04,740
In our community, we've now lost really one of the finest cardiac surgeons.

4729
06:07:05,000 --> 06:07:06,780
You can't replace a Bob McGeehy.

4730
06:07:07,940 --> 06:07:13,780
This is a man who all of us respect as a moment of fine.

4731
06:07:13,980 --> 06:07:18,300
This is like going to American Airlines and taking out the senior captains from the

4732
06:07:18,300 --> 06:07:20,460
left-hand seat of all those cop picks.

4733
06:07:21,200 --> 06:07:24,620
Yes, there's somebody in there the next day, but it's not the guy with 10,000 hours

4734
06:07:24,620 --> 06:07:25,200
experience.

4735
06:07:26,020 --> 06:07:31,800
Texas is silently losing a huge hidden treasure of medical talent.

4736
06:07:32,440 --> 06:07:38,600
We've pulled our members and over 50% of our members in their 50s are planning early retirement.

4737
06:07:39,560 --> 06:07:46,000
And 75% of those say that it's because of the medical malpractice crisis that's forcing them to make that consideration.

4738
06:07:46,640 --> 06:07:51,100
I'm a member of a 13-man cardiology group that's been in Fort Worth for 35 years.

4739
06:07:51,100 --> 06:08:01,040
We've seen our premium go up in the last three years from $125,000 to a quote this year of $670,000.

4740
06:08:02,080 --> 06:08:08,580
We had very much wanted to open a clinic to treat and care for patients with congestive heart failure.

4741
06:08:09,100 --> 06:08:11,500
We wanted to hire foreign nurse practitioners.

4742
06:08:12,380 --> 06:08:15,680
That entire budget now goes to the medical legal system.

4743
06:08:16,240 --> 06:08:19,820
Not to patient care, not to taking care of sick Texans.

4744
06:08:20,460 --> 06:08:23,800
Access to care is being lost across the spectrum.

4745
06:08:24,480 --> 06:08:28,580
I want to thank you, each and every one of you, for all the work you do.

4746
06:08:28,660 --> 06:08:30,060
And I've been through these hearings today.

4747
06:08:30,320 --> 06:08:35,020
I'm really marveled at the diligence and thought and care that you've put into this.

4748
06:08:35,080 --> 06:08:38,360
And I'm proud that you're representing Texans.

4749
06:08:38,640 --> 06:08:41,340
And I know you're going to do a fine job at solving this crisis.

4750
06:08:43,620 --> 06:08:45,180
You have a question. Thank you, Ms. Davis.

4751
06:08:46,060 --> 06:08:49,540
Thank you, Doctor, for being here and the process works

4752
06:08:49,540 --> 06:08:51,480
when people like yourself are involved in it,

4753
06:08:51,520 --> 06:08:52,940
so I encourage you to stay involved.

4754
06:08:53,780 --> 06:08:57,020
Let me ask you a question related to your insurance situation.

4755
06:08:57,720 --> 06:09:01,060
When you purchase insurance, and I mean, I'm just curious,

4756
06:09:01,500 --> 06:09:04,060
are you able to tell whether it's a regulated company

4757
06:09:04,620 --> 06:09:07,500
or a non-regulated company for the state of Texas

4758
06:09:07,500 --> 06:09:09,000
when you purchase your insurance policy?

4759
06:09:09,060 --> 06:09:11,220
Yeah, we know what the status of the companies are.

4760
06:09:12,020 --> 06:09:14,440
We know whether TMLT is a trust.

4761
06:09:14,440 --> 06:09:17,520
We know that the medical protective is a regulated agency.

4762
06:09:17,740 --> 06:09:21,200
We know that the joint underwriters association, where they stand.

4763
06:09:21,900 --> 06:09:26,640
And from your experience, and I don't know this, so this is not a trick question.

4764
06:09:26,780 --> 06:09:31,840
I'm just curious, how many of the policies are, how many, are you aware, how many policies

4765
06:09:31,840 --> 06:09:35,140
are from unregulated side versus the regulated side?

4766
06:09:35,280 --> 06:09:37,960
What, who do people traditionally buy their policies?

4767
06:09:38,860 --> 06:09:43,380
Do they buy them from the regulated companies, or do they purchase, or is it just half

4768
06:09:43,380 --> 06:09:45,100
or just what?

4769
06:09:45,820 --> 06:09:47,540
You know, I really don't know the answer.

4770
06:09:47,680 --> 06:09:51,860
Kind of a street view is that physicians purchase where they can find it available,

4771
06:09:52,040 --> 06:09:55,200
and increasingly, it's very difficult to even find availability.

4772
06:09:56,140 --> 06:10:00,520
And so, in the physician's mind, whether this is a regulated or unregulated company,

4773
06:10:01,400 --> 06:10:03,240
really has no bearing for us.

4774
06:10:03,640 --> 06:10:04,640
And I'm sure that's true.

4775
06:10:04,880 --> 06:10:07,140
That's not something you ought to be really worried about.

4776
06:10:07,140 --> 06:10:13,120
I'm just curious about whether or not there might be some issue with regard to the level of service

4777
06:10:13,120 --> 06:10:18,240
and purchase power from those that are regulated versus the non-regulated companies.

4778
06:10:18,440 --> 06:10:21,840
And I just thought you could just kind of tell me where do people mostly fall

4779
06:10:21,840 --> 06:10:25,260
and if that's a factor or consideration that you made.

4780
06:10:25,880 --> 06:10:27,040
I really don't know.

4781
06:10:27,340 --> 06:10:27,760
Thank you.

4782
06:10:30,960 --> 06:10:32,000
Thank you very much, Doctor.

4783
06:10:33,080 --> 06:10:46,280
All right, the Chair greatly reluctantly recognizes Craig Highland who wants

4784
06:10:46,280 --> 06:10:59,040
to testify on, against, oh he says he's neutral, a cheerleader's right to change that on ACR3

4785
06:10:59,040 --> 06:11:00,280
and HB3.

4786
06:11:04,340 --> 06:11:05,380
I just want to make sure he's in the room.

4787
06:11:05,420 --> 06:11:06,520
I'm going to swear at you anyway.

4788
06:11:08,300 --> 06:11:10,100
There's nothing to take away, I got a whole line of questions.

4789
06:11:10,260 --> 06:11:15,800
Now, you get to lobby all of us on the floor every day all the time, so let's be mindful

4790
06:11:17,020 --> 06:11:21,380
I understand what I want to do since I didn't get to ask any questions today, I want to make

4791
06:11:21,380 --> 06:11:26,100
sure to throw out some issues so that y'all can ask questions about them so we have a bill

4792
06:11:26,100 --> 06:11:27,120
that works.

4793
06:11:27,740 --> 06:11:30,780
My name's Craig Allen, I'm just a regular person here.

4794
06:11:31,920 --> 06:11:37,380
Okay, first, going through the, first of all, it's not a council draft.

4795
06:11:37,780 --> 06:11:41,860
I think that the committee substituted the bill that hits the floor, it'd be a council

4796
06:11:41,860 --> 06:11:42,260
draft.

4797
06:11:42,560 --> 06:11:43,500
It is a council draft.

4798
06:11:43,500 --> 06:11:45,960
It says at the bottom, just not, it's a form gone.

4799
06:11:46,740 --> 06:11:47,580
It's the county term.

4800
06:11:48,800 --> 06:11:52,440
Number two, when you look at the claimant's term, that means a family.

4801
06:11:53,100 --> 06:11:58,800
And so when we look over at the cap, the punitive damage cap of $250,000, it applies to a family.

4802
06:11:59,340 --> 06:12:00,940
I don't know how we're supposed to work that out.

4803
06:12:01,000 --> 06:12:05,620
If there is an award by the jury of more than $250,000, how do you divide the money

4804
06:12:05,620 --> 06:12:09,300
amongst the children and the widow, I mean the children and the other people?

4805
06:12:10,400 --> 06:12:14,260
There's no guidance in here and it's never been done before so we don't know how it's

4806
06:12:14,260 --> 06:12:14,720
going to work.

4807
06:12:15,300 --> 06:12:20,260
Number two, non-economic damages in medical malpractice now includes punitive damages

4808
06:12:20,260 --> 06:12:21,420
according to this definition.

4809
06:12:22,200 --> 06:12:26,820
And therefore, number one, that's not necessary because non-economic damages are not insured

4810
06:12:26,820 --> 06:12:30,380
so from the liability crisis it's not a reason to do it.

4811
06:12:30,680 --> 06:12:31,520
We already have a-

4812
06:12:31,520 --> 06:12:32,780
You mean punitive damages?

4813
06:12:32,820 --> 06:12:33,920
Punitive damages, I'm sorry.

4814
06:12:34,660 --> 06:12:39,040
And so we ought to take a look at that to see if we really want to limit penance of damages

4815
06:12:39,040 --> 06:12:41,560
to be included in that $250,000 cap.

4816
06:12:42,280 --> 06:12:45,340
The settlement offers the one way.

4817
06:12:45,460 --> 06:12:46,520
They should be both ways.

4818
06:12:46,720 --> 06:12:49,660
There's another bill that includes the settlement offer language.

4819
06:12:49,900 --> 06:12:51,240
You ought to have it the same for everybody.

4820
06:12:51,540 --> 06:12:55,840
But if we're all going to have it, the dates need to be changed because 10 days

4821
06:12:55,840 --> 06:12:57,740
to decide if you're going to accept an offer isn't enough.

4822
06:12:57,940 --> 06:12:59,720
I say we have to 30 days.

4823
06:13:00,120 --> 06:13:03,400
And then we got this goofy deal in here that says you have to dismiss your claim

4824
06:13:03,400 --> 06:13:08,580
before you get paid because once you accept the claim you have seven days to

4825
06:13:08,580 --> 06:13:12,420
dismiss your case and then they have ten days to pay you. First of all, that's not

4826
06:13:12,420 --> 06:13:18,140
realistic. You can't do the paperwork in ten days and so we need to make sure that

4827
06:13:18,140 --> 06:13:27,830
that's workable. Then you go over to the, wait a minute, I'll start the clock.

4828
06:13:28,250 --> 06:13:28,830
Yes, sir.

4829
06:13:31,660 --> 06:13:32,120
I'm sorry, Craig.

4830
06:13:32,200 --> 06:13:32,920
What page is that on?

4831
06:13:33,320 --> 06:13:33,800
Which part?

4832
06:13:34,100 --> 06:13:35,400
The 7th?

4833
06:13:35,420 --> 06:13:36,540
Oh, the 7th and the 10th day?

4834
06:13:36,640 --> 06:13:36,780
Yeah.

4835
06:13:36,900 --> 06:13:37,620
On page 4?

4836
06:13:37,820 --> 06:13:40,660
That's on page 4, line 19, 7th day.

4837
06:13:41,060 --> 06:13:42,940
I thought it says the plaintiff...

4838
06:13:44,960 --> 06:13:49,900
On line 12, it says the plaintiff has 10 days once an offer is made, the judge is going to accept it or not.

4839
06:13:50,140 --> 06:13:50,380
Right.

4840
06:13:50,540 --> 06:13:55,820
If they accept it, the defendant has to pay the full amount of money in 10 days.

4841
06:13:56,100 --> 06:13:56,340
Right.

4842
06:13:56,340 --> 06:14:02,480
But then, E.E. said that the plaintiff has to dismiss his case seven days after accepting

4843
06:14:02,480 --> 06:14:02,920
the offer.

4844
06:14:03,460 --> 06:14:10,390
So after receiving payment, not later than the seventh day after the date the plaintiff

4845
06:14:10,390 --> 06:14:15,670
received payment and delivered the executor lease, he'll file a dismissal with prejudice.

4846
06:14:16,650 --> 06:14:20,870
Those days we have to, the dates have to be fixed.

4847
06:14:23,680 --> 06:14:25,520
Greg, so far you are not going to talk about all this.

4848
06:14:25,980 --> 06:14:26,200
Okay.

4849
06:14:26,200 --> 06:14:31,460
But we have it in public and I want to make sure that we everybody knows that I have it with Ms. Davis

4850
06:14:31,460 --> 06:14:35,180
I haven't missed with Ms. Woolley, and I have it with Mr. King completely

4851
06:14:37,940 --> 06:14:38,420
Number

4852
06:14:40,240 --> 06:14:45,340
On page 5 the real 202 deposition it says you can't take any

4853
06:14:45,960 --> 06:14:50,500
Discovery deposition before firing a lawsuit if that's being abused in medical my practice

4854
06:14:50,500 --> 06:14:55,400
We should limit it to maybe three because the other thing is you go over to the

4855
06:14:55,400 --> 06:14:59,860
report that is required. We give a 180 days. Nothing.

4856
06:15:00,600 --> 06:15:07,820
You can't take a deposition in 180 days to have a good expert report, and that is not

4857
06:15:07,820 --> 06:15:12,220
very workable, and you're not going to have a very good report if you can't have any evidence

4858
06:15:12,220 --> 06:15:13,160
to support your report.

4859
06:15:14,880 --> 06:15:19,840
The other thing is I do, Mr. Hall talked about earlier, you asked Mr. Kruse. I think it's

4860
06:15:19,840 --> 06:15:24,380
kind of goofy to allow eighth graders to go hire lawyers. An eighth grader can go hire

4861
06:15:24,380 --> 06:15:30,300
lawyer paying $300 an hour. The lawyer can go investigate the claim. A month later, send

4862
06:15:30,300 --> 06:15:35,000
a bill to you for investigating the claim that you're able to hire me to do. Run a family

4863
06:15:35,000 --> 06:15:41,500
code to respond to that. So on page eight, if we remove the majority of minors or the

4864
06:15:41,500 --> 06:15:44,960
minority of minors, we should go amend the family code so that parents don't have

4865
06:15:44,960 --> 06:15:46,140
a hard response for those bills.

4866
06:15:48,620 --> 06:15:51,460
On the finance responsibility pieces, we should

4867
06:15:51,460 --> 06:15:55,800
at least make TDI responsible for the solvency issues,

4868
06:15:55,980 --> 06:15:58,860
because all you got to do is show you got $100,000

4869
06:15:58,860 --> 06:16:01,080
in assets, the white assets,

4870
06:16:01,380 --> 06:16:03,060
and does that mean that they are solving assets

4871
06:16:03,060 --> 06:16:05,980
and that will be there when in time to pay the judgements?

4872
06:16:06,100 --> 06:16:09,140
So we need to add some TDI regulation in there

4873
06:16:09,140 --> 06:16:10,400
on those issues.

4874
06:16:13,620 --> 06:16:17,200
Let's see, going over to the very back,

4875
06:16:17,200 --> 06:16:23,820
We have these findings that on page 39

4876
06:16:26,570 --> 06:16:28,890
says the number of health care liability claims

4877
06:16:28,890 --> 06:16:32,150
of frequency has increased since 1995 in ordnance.

4878
06:16:32,510 --> 06:16:35,050
We know it is according to Commissioner Montemayor.

4879
06:16:35,110 --> 06:16:36,870
We have just put in there the actual numbers.

4880
06:16:37,110 --> 06:16:45,950
Since 1997, frequency has increased by 4.5%.

4881
06:16:45,950 --> 06:16:52,870
So why include, you know, nondescriptive words in here when we know what the answer is.

4882
06:16:53,510 --> 06:16:57,250
And then on number three, it says severity has increased in orderly.

4883
06:16:57,630 --> 06:16:58,410
We know what severity is.

4884
06:16:58,590 --> 06:17:00,130
Severity has increased by 6%.

4885
06:17:00,130 --> 06:17:03,550
So if we're going to put something in there, we ought to put those numbers in there.

4886
06:17:05,630 --> 06:17:12,350
Also, on number 12, we're saying this legislation, the adoption of certain modifications in medical insurance

4887
06:17:12,350 --> 06:17:15,810
and a local system, the total effect of which is currently

4888
06:17:15,810 --> 06:17:18,930
undetermined may or may not have an effect on rates.

4889
06:17:19,130 --> 06:17:19,570
Next slide.

4890
06:17:19,790 --> 06:17:23,250
I don't want to vote on that by submitting

4891
06:17:23,250 --> 06:17:26,630
that this may or may not affect premium rates.

4892
06:17:30,050 --> 06:17:32,410
And I would suggest that if we're going to have a report

4893
06:17:32,410 --> 06:17:33,470
on the effect of this bill,

4894
06:17:33,930 --> 06:17:36,510
right now the date is December 1, 2006.

4895
06:17:36,710 --> 06:17:38,430
So it's going to be six months

4896
06:17:38,430 --> 06:17:39,950
after the next legislative session.

4897
06:17:40,190 --> 06:17:41,790
If we're going to have a report on the effect of this

4898
06:17:41,790 --> 06:17:44,370
So as Mr. Creese said, we can fix things.

4899
06:17:44,790 --> 06:17:48,550
It ought to be at least during the next session.

4900
06:17:49,410 --> 06:17:51,430
And the periodic payment of attorney's fees,

4901
06:17:51,590 --> 06:17:52,830
I think it's kind of goofy that,

4902
06:17:53,370 --> 06:17:56,850
number one, I call this the joke crab portion of the bill,

4903
06:17:57,230 --> 06:18:00,950
that says attorney's fees are gonna be paid out

4904
06:18:01,510 --> 06:18:02,970
periodically over time.

4905
06:18:03,170 --> 06:18:05,310
So you're not gonna be able to have an old lawyer

4906
06:18:05,310 --> 06:18:08,190
represent a young client if the periodic payments

4907
06:18:08,190 --> 06:18:10,450
on future damages are gonna be paid over time.

4908
06:18:17,750 --> 06:18:23,790
On page 29, the thing about that is it says periodic payments, the court shall place a

4909
06:18:23,790 --> 06:18:28,450
total value on these payments based upon the claimant's projected life expectancy and reduced

4910
06:18:28,450 --> 06:18:34,430
amount to present value for purposes of awarding attorney's fees and then you then pay that

4911
06:18:34,430 --> 06:18:35,190
out over time.

4912
06:18:35,330 --> 06:18:38,450
So that's like a double negative on fees.

4913
06:18:38,450 --> 06:18:41,970
And I know that nobody's concerned about that, but first you're reducing the net present

4914
06:18:41,970 --> 06:18:43,850
value and then you pay them out over time.

4915
06:18:44,470 --> 06:18:49,690
That's not even tricky, that's just downright mean.

4916
06:18:53,990 --> 06:19:00,810
The other thing is, when people say in this bill that we have no cap on non-economic

4917
06:19:00,810 --> 06:19:06,390
damages that is absolutely false and not true, because if you look at the cap on the

4918
06:19:06,390 --> 06:19:12,930
wrongful death piece. The cap is an absolute cap for all damages of 1.4 million. That includes

4919
06:19:12,930 --> 06:19:20,210
economic damages and your medical bills. And so that is not true when people say that.

4920
06:19:20,290 --> 06:19:25,370
If we want to do it, let's say it, but when we say we're not capping economic damages

4921
06:19:25,370 --> 06:19:32,550
in this bill. We are. And the last thing, or one other thing,

4922
06:19:37,200 --> 06:19:39,980
you know, on page 6, for

4923
06:19:39,980 --> 06:19:44,680
proof of how much your loss of earning capacity is, we're going to be, we're going to allow

4924
06:19:44,680 --> 06:19:49,360
the, into evidence, the, not the amount of money you made in the past, not the amount

4925
06:19:49,360 --> 06:19:52,980
of money you reported on your income taxes, not the amount of money that you reported

4926
06:19:52,980 --> 06:19:59,280
social security earnings, but the amount of taxes that you actually paid will be proof

4927
06:19:59,280 --> 06:20:02,560
of your earning capacity, and I think that's a goofy, because we're going to be talking

4928
06:20:02,560 --> 06:20:07,880
about people's tax shelters, et cetera, because, you know, instead of showing evidence

4929
06:20:07,880 --> 06:20:13,240
I made $100,000, it's going to be evidence that you paid $4,000 in taxes on $100,000

4930
06:20:13,240 --> 06:20:13,740
of earnings.

4931
06:20:14,240 --> 06:20:17,720
And we just get into kind of some very strange discussions.

4932
06:20:18,580 --> 06:20:21,920
And there's one other issue that I remember when Katie Williams went about three years

4933
06:20:21,920 --> 06:20:22,640
with no income.

4934
06:20:22,640 --> 06:20:32,800
Right. I think it's strange over on the alternative limits. We have a $200,000 for the first couple

4935
06:20:32,800 --> 06:20:39,600
years of this deal. If you have a $200,000 in liability coverage, you get the benefit of the

4936
06:20:39,600 --> 06:20:47,500
cap. So you can have less coverage than the maximum and still have the benefits. I just think

4937
06:20:47,500 --> 06:20:52,380
that we ought to make sure that you have at least the minimum amount of coverage to cover

4938
06:20:52,380 --> 06:20:59,780
your damages. And I'm looking for one other thing, Mr. Chairman, and I'll sit down.

4939
06:21:00,720 --> 06:21:05,020
That's all right. Craig, yes, sir, everybody knows. You and I have sat down and talked about

4940
06:21:05,020 --> 06:21:07,920
all this in private, and we've agreed to go to work on it.

4941
06:21:07,940 --> 06:21:12,820
Try to address something, yes, sir. Two other things. Collateral source. The last

4942
06:21:12,820 --> 06:21:17,620
week of testimony was we don't want double dipping, but when you remove the collateral

4943
06:21:17,620 --> 06:21:23,220
a source rule and you eliminate subrogation, you have double dipping. If I go out and I

4944
06:21:23,220 --> 06:21:29,160
have insurance from Aetna and Aetna pays $100,000 of medical bills and then they are not allowed

4945
06:21:29,160 --> 06:21:36,680
to subrogate that in the lawsuit, I get $100,000 from the physician. Aetna doesn't get

4946
06:21:36,680 --> 06:21:43,140
the money. That is double dipping because I didn't pay $100,000 of insurance, I mean

4947
06:21:43,140 --> 06:21:46,660
in medical bills, hadn't have did, but they don't get their money back.

4948
06:21:47,120 --> 06:21:48,720
Not that I really care about, haven't I?

4949
06:21:49,620 --> 06:21:50,960
But that is double dipping.

4950
06:21:51,760 --> 06:21:54,840
And finally on the invisibility of evidence of collateral source,

4951
06:21:56,440 --> 06:21:59,940
what happens if I have a million dollar life insurance policy

4952
06:21:59,940 --> 06:22:02,800
and it has accidental death, double indemnity.

4953
06:22:02,960 --> 06:22:06,120
So if I have a medical malpractice, wrongful death claim

4954
06:22:06,120 --> 06:22:08,760
and get two million dollars in life insurance,

4955
06:22:08,760 --> 06:22:17,040
My maximum cap is 1.4, and I got $2 million in collateral benefits.

4956
06:22:17,520 --> 06:22:18,560
Do I not have a case?

4957
06:22:20,700 --> 06:22:21,520
Is that a question?

4958
06:22:22,220 --> 06:22:22,620
Yes.

4959
06:22:23,340 --> 06:22:25,840
I'm going to address this for just a second.

4960
06:22:27,840 --> 06:22:29,820
Okay, remember there's a lot of people out here who want to talk.

4961
06:22:30,460 --> 06:22:32,500
And Craig got us for another point.

4962
06:22:32,900 --> 06:22:37,360
Yeah, I mean the point of the collateral source rule, as you well know, is for those

4963
06:22:37,360 --> 06:22:39,680
cases, it's not saying that you don't get to collect.

4964
06:22:39,680 --> 06:22:46,340
It's just saying, it's for those cases where you really don't have the malpractice aspect

4965
06:22:46,340 --> 06:22:49,020
of it, but you've got a jury sitting there and thinking, well, God, ladies, poor people

4966
06:22:49,020 --> 06:22:49,900
are out all this money.

4967
06:22:50,520 --> 06:22:54,260
And in the show, the fact that, you know, bills have been paid, don't hold this doctor

4968
06:22:54,260 --> 06:22:57,260
libel, you know, because you feel sorry for this family.

4969
06:22:57,460 --> 06:22:59,000
That's the purpose of the collateral source, right?

4970
06:22:59,980 --> 06:23:02,020
I mean, I think that's what the intent behind it is.

4971
06:23:02,980 --> 06:23:03,260
Okay.

4972
06:23:03,920 --> 06:23:10,640
Anyway, I just want to know that and then finally on the periodic payment of future damages,

4973
06:23:11,040 --> 06:23:17,280
you know, if the periodic payment is not made, it says it goes back to the defendant, well

4974
06:23:17,280 --> 06:23:21,240
that's double dipping because it goes back to the doctorate of the hospital and the insurance

4975
06:23:21,240 --> 06:23:26,340
company paid the money, then the doctorate of the hospital get that remaining $100,000

4976
06:23:26,340 --> 06:23:28,340
and not the insurance company.

4977
06:23:29,400 --> 06:23:30,580
So pretty good deal.

4978
06:23:31,400 --> 06:23:32,020
Thank you.

4979
06:23:32,020 --> 06:23:38,760
Hey Craig, I know you'll have an opportunity to work us over from other times.

4980
06:23:39,100 --> 06:23:40,360
Can I reduce those opportunities?

4981
06:23:41,140 --> 06:23:44,760
Yeah, I think let's reserve our question for Mr. Allen for later.

4982
06:23:46,240 --> 06:23:57,740
Chair recognizes Lori Grover to speak against HB3 and against HCR3.

4983
06:23:58,480 --> 06:24:00,460
Ms. Grover, please tell us your name.

4984
06:24:00,460 --> 06:24:02,100
And if you're representing somebody who?

4985
06:24:02,580 --> 06:24:07,140
Hi. My name is Lori Grover and I represent myself and my husband and our family.

4986
06:24:07,760 --> 06:24:14,440
And I'd like to basically tell you that I think putting a cap on medical malpractice is wrong.

4987
06:24:15,080 --> 06:24:18,580
You really can't cap what we lost. My husband had eight strokes.

4988
06:24:18,980 --> 06:24:24,020
We settled our course, our court case. We did not end up going to court.

4989
06:24:24,020 --> 06:24:30,920
there were things that they did not consider in our settlement, economic type things, non-economic

4990
06:24:30,920 --> 06:24:36,160
type things, the things that my husband can't do, that have greatly impacted our family.

4991
06:24:37,500 --> 06:24:42,260
Change in his position at where he works, you know, at the time we settled he had

4992
06:24:42,260 --> 06:24:42,880
one salary.

4993
06:24:43,040 --> 06:24:47,480
We have another salary now that we have to contend with, you know, the counseling

4994
06:24:47,480 --> 06:24:49,020
that my children have to go through.

4995
06:24:50,000 --> 06:24:52,480
There's also laws that should be changed.

4996
06:24:52,480 --> 06:24:54,820
First, secret settlements should not be allowed.

4997
06:24:55,660 --> 06:25:00,480
They should be to the point where they are mandated to be reported to the medical board

4998
06:25:00,480 --> 06:25:01,020
for review.

4999
06:25:01,760 --> 06:25:04,900
There's doctors that are out there practicing and still many new people.

5000
06:25:05,720 --> 06:25:10,460
The neurosurgeon who was involved in our case is still practicing today, and he should

5001
06:25:10,460 --> 06:25:10,840
not be.

5002
06:25:11,240 --> 06:25:13,020
There are four other cases I'm aware of.

5003
06:25:13,940 --> 06:25:17,680
One lady is an incomplete quad, a respirator.

5004
06:25:18,440 --> 06:25:19,260
This isn't right.

5005
06:25:19,260 --> 06:25:26,080
My husband ends up with double vision, right arm that doesn't work, slurred speech, hearing

5006
06:25:26,080 --> 06:25:29,200
impairment, right leg weakness.

5007
06:25:29,920 --> 06:25:36,100
I mean, how can you put a price on a leg, on a arm, on your children who have a dad that

5008
06:25:36,100 --> 06:25:37,200
can't throw out and play ball?

5009
06:25:38,180 --> 06:25:39,820
How can you put a price on that?

5010
06:25:41,200 --> 06:25:42,640
It's just not right.

5011
06:25:44,660 --> 06:25:45,860
It's just not right.

5012
06:25:46,240 --> 06:25:46,600
Morally.

5013
06:25:47,500 --> 06:25:53,500
You know, there needs to be a jury system where the jury actually gets to hear the court case

5014
06:25:53,500 --> 06:25:58,440
and not be referred to as Joe Blow Six Pack, who is actually an uneducated person

5015
06:25:58,440 --> 06:26:00,200
who cannot tell right from wrong.

5016
06:26:01,060 --> 06:26:02,140
We don't trust our courts.

5017
06:26:02,900 --> 06:26:04,240
This is obviously why we're here.

5018
06:26:04,480 --> 06:26:05,360
Nobody trusts the courts.

5019
06:26:08,820 --> 06:26:09,540
Thank you very much.

5020
06:26:11,580 --> 06:26:16,020
Joe recognizes Mr. Cori.

5021
06:26:33,780 --> 06:26:42,820
I think I can cover that. Okay. My name is Tony Corey. If I'm General Counsel of Texas

5022
06:26:42,820 --> 06:26:44,520
of this week in a government risk pool.

5023
06:26:45,040 --> 06:26:49,120
In government risk pool is about the cities of the state.

5024
06:26:49,320 --> 06:26:51,480
We have about 1,800 members.

5025
06:26:51,720 --> 06:26:55,680
We also do coverage for the water control improvement

5026
06:26:55,680 --> 06:26:57,960
districts and other entities like that.

5027
06:26:58,060 --> 06:27:00,320
The counties have one, the school boards have one.

5028
06:27:00,960 --> 06:27:02,840
They've all been successful for one reason,

5029
06:27:03,000 --> 06:27:04,240
and that is the mandatory.

5030
06:27:05,820 --> 06:27:07,220
And the more you can spread it.

5031
06:27:07,340 --> 06:27:08,940
Now, I mean, if you can sit back there and listen

5032
06:27:08,940 --> 06:27:10,860
to what we're carrying out, there it is.

5033
06:27:10,860 --> 06:27:14,920
When you start hearing those figures on everybody, it's simple.

5034
06:27:15,600 --> 06:27:17,100
Insurance is the numbers game.

5035
06:27:18,020 --> 06:27:21,560
You're spreading the cost among too few people.

5036
06:27:22,640 --> 06:27:27,780
That's what we discovered when we got into our whole field, was we had to spread it out.

5037
06:27:27,900 --> 06:27:29,560
It had to be mandatory to work.

5038
06:27:30,460 --> 06:27:35,560
And the more people that we've covered, it's gotten cheaper and cheaper and cheaper.

5039
06:27:36,660 --> 06:27:40,720
Now, what I really came to talk about is he's already covered partially family and that

5040
06:27:41,140 --> 06:27:41,380
subrogation.

5041
06:27:42,220 --> 06:27:43,840
Let me explain that to you.

5042
06:27:44,960 --> 06:27:48,900
Medical mouth is a little bit different in subrogation than the normal subrogation cases

5043
06:27:48,900 --> 06:27:49,460
you hear.

5044
06:27:50,540 --> 06:27:56,940
When an injured employee goes to see a doctor, he goes in there and the doctor screws up.

5045
06:27:58,660 --> 06:28:10,180
We pay. The comp carrier pays. We don't get any chance to get our money back. We got to continue paying for the whole treatment. We got to pay indemnity payments, the whole thing.

5046
06:28:11,740 --> 06:28:19,780
Even though we didn't do anything wrong, we didn't even send it. He fixed his own doctor on your comp. We didn't do anything wrong. But we got to pay.

5047
06:28:20,720 --> 06:28:24,040
Now, in this bill, you're saying we can't recover.

5048
06:28:24,800 --> 06:28:31,680
Well, just to give you a quick idea, we recovered around three or four years about a million bucks in a situation.

5049
06:28:32,000 --> 06:28:35,040
So when you're saying, well, the judgments for million dollars, no it's not.

5050
06:28:35,840 --> 06:28:38,940
The judgments for million dollars plus what we've thrown into the pot.

5051
06:28:39,520 --> 06:28:44,120
This is not just for comp for us, but all the insurance companies together.

5052
06:28:45,020 --> 06:28:48,080
They're picking up this tab. You're not mentioning that at all.

5053
06:28:48,860 --> 06:28:53,440
One thing, don't be so scared about just doing a simple bill with caps.

5054
06:28:54,620 --> 06:28:58,300
Don't remember that's how the cities operate, that's how the school boards operate, that's

5055
06:28:58,300 --> 06:29:00,140
how the counties operate, that's real simple.

5056
06:29:01,020 --> 06:29:03,560
You've got my judgment a little too fancy here.

5057
06:29:04,560 --> 06:29:08,060
The other thing is you're going to find that race is going to go up because of 9-11.

5058
06:29:08,480 --> 06:29:09,760
It's hit us tremendously.

5059
06:29:10,680 --> 06:29:16,240
You can imagine we can run around 200 million a year in our assets.

5060
06:29:16,240 --> 06:29:22,860
We spend about 45 million a year about what we get in premiums back into the system.

5061
06:29:23,980 --> 06:29:28,000
We've been jumped up and we pay the first million ourselves of any losses.

5062
06:29:28,900 --> 06:29:34,920
We've jumped up over three times on reinsurance for no reason except 9-11.

5063
06:29:36,020 --> 06:29:37,760
Everybody's getting there and they've got to recruit.

5064
06:29:38,400 --> 06:29:40,640
Let me make one final suggestion for you.

5065
06:29:41,600 --> 06:29:49,540
That you give some thought, but when you talk about medical, it's something that all of us need to worry about.

5066
06:29:49,860 --> 06:29:56,000
When we're home kids, we have these problems. How can, in fact, we lower it? You've got to spread the risk.

5067
06:29:56,740 --> 06:29:59,420
The state has got to say let's create a pool for

5068
06:30:00,000 --> 06:30:08,160
For serious injuries, quadriplegics, paraplegics, the babies, all burn cases, that, and put the

5069
06:30:08,160 --> 06:30:12,820
money into a pool and let the pool pick up these ones that are tough, that are ones that

5070
06:30:12,820 --> 06:30:18,780
are driving everybody crazy that they talk about here. Unless you spread this risk, you're

5071
06:30:18,780 --> 06:30:24,120
not getting away with anything. It's just going to keep coming back to you again and

5072
06:30:24,120 --> 06:30:28,700
again. It doesn't make any difference because you've got too few people to spread

5073
06:30:28,700 --> 06:30:33,300
the risk of that. So I suggest you give some thoughts about the risk as much as you can.

5074
06:30:33,560 --> 06:30:34,300
Thank you Mr. Chairman.

5075
06:30:34,540 --> 06:30:37,100
Thank you Mr. Chair.

5076
06:30:37,420 --> 06:30:37,580
Thank you Mr. Chair.

5077
06:30:37,580 --> 06:30:43,940
Chair recognizes Chris Spence to speak for House Bill 3 and for HR3.

5078
06:30:44,900 --> 06:30:45,380
Mr.

5079
06:30:55,620 --> 06:31:01,540
Chairman, thank you. My name is Chris Spence. I'm Chair-elect of the Texas Association

5080
06:31:01,540 --> 06:31:07,840
of Homes and Services for the Aging President of Wesleyan Homes in Georgetown. TASA is

5081
06:31:07,840 --> 06:31:15,100
the association that represents over 200 faith and community non-profit organizations around

5082
06:31:15,100 --> 06:31:18,660
the state serving 30,000 older adults and their families.

5083
06:31:21,980 --> 06:31:28,580
The passing out today, a recently published outlook from Fitch Ratings.

5084
06:31:28,620 --> 06:31:35,940
Fitch is the second national rating agency behind Standard and Poor's and for long-term

5085
06:31:35,940 --> 06:31:42,000
long-term care probably rates more of the long-term care debt than Standard & Ports does.

5086
06:31:42,880 --> 06:31:48,060
Fitch just said that the outlook for nonprofit nursing home sector is very negative.

5087
06:31:49,100 --> 06:31:54,740
And when they go to list reasons for that, they hit pretty hard on the insurance.

5088
06:31:55,840 --> 06:32:04,200
They specifically list Florida and Texas as states with particular problems because of

5089
06:32:04,200 --> 06:32:06,560
No limits on awards for pain and suffering.

5090
06:32:07,240 --> 06:32:12,300
Fitz says that they expect insurance premium increases to continue to rise with no relief

5091
06:32:12,300 --> 06:32:17,660
until states pass legislation that limits lawsuits and establishes meaningful caps on

5092
06:32:17,660 --> 06:32:18,320
settlements.

5093
06:32:23,920 --> 06:32:29,040
Part of the reason that's important is that their outlook is saying whether their

5094
06:32:29,040 --> 06:32:32,180
rated credits will be able to survive and will be able to pay their debt.

5095
06:32:32,180 --> 06:32:41,580
there's hundreds of millions of dollars in not-for-profit long-term care bonds on the

5096
06:32:41,580 --> 06:32:46,180
books in Texas. We've seen many of our member facilities get out of the Medicaid

5097
06:32:46,180 --> 06:32:52,840
program. We've seen facilities being sold, facilities being closed. You know,

5098
06:32:52,900 --> 06:32:58,200
Trinity Lutheran was represented, Cruci was in Round Rock. Lutherans were on that

5099
06:32:58,200 --> 06:33:05,340
property over 90 years, over 50 years as a nursing home, and because of litigation they're

5100
06:33:05,340 --> 06:33:06,120
no longer there.

5101
06:33:06,400 --> 06:33:12,340
We're seeing it happen in all our denominations, Protestant, Catholic, and Jewish.

5102
06:33:14,040 --> 06:33:21,020
And many of them, especially if they're also serving families and children and have endowments

5103
06:33:21,020 --> 06:33:25,320
to protect, say, we can no longer participate in long-term care.

5104
06:33:25,320 --> 06:33:32,620
We've heard testimony today about that this is a women's issue, an issue of the poor,

5105
06:33:32,940 --> 06:33:36,980
low economic status, an issue of children, and it's also an issue of frail elderly.

5106
06:33:37,520 --> 06:33:42,400
And for all those, it's an issue of access to medical care.

5107
06:33:43,300 --> 06:33:49,520
And your job, I think, is to balance access to the legal system with access to patient

5108
06:33:49,520 --> 06:33:49,920
care.

5109
06:33:53,230 --> 06:34:00,170
We are very concerned about mandatory insurance provisions, however we do support this bill.

5110
06:34:02,010 --> 06:34:05,930
More than half the non-for-profit nursing homes, more than half the nursing homes in

5111
06:34:05,930 --> 06:34:07,850
the state have no insurance.

5112
06:34:08,450 --> 06:34:12,930
Insurance is unavailable and it's unaffordable.

5113
06:34:13,810 --> 06:34:18,390
Average non-profit that still has insurance has seen over a thousand percent increase

5114
06:34:18,390 --> 06:34:19,650
over the last four years.

5115
06:34:19,650 --> 06:34:26,050
years. I would love to have California's experience. I'm doing somewhat better. My colleagues tell

5116
06:34:26,050 --> 06:34:33,130
me that with only 525% increase in the last four years, I should count myself lucky. We've

5117
06:34:33,130 --> 06:34:40,870
gone from $40,000 a year to $253,000 a year. And my rates are about half of those of my

5118
06:34:40,870 --> 06:34:46,350
colleagues that can still afford insurance, that still have insurance. I don't have

5119
06:34:46,350 --> 06:34:50,970
another quarter million dollars. I don't have another fifty or a hundred or two

5120
06:34:50,970 --> 06:34:56,370
hundred percent to put back into it. We're talking about community resources

5121
06:34:56,370 --> 06:35:02,390
that have been donated in Westlands case over 40 years in that community to go

5122
06:35:02,390 --> 06:35:08,550
into long-term care and we question whether we'll be able to survive at

5123
06:35:08,550 --> 06:35:13,710
all. Donations are drying up. I think part of that's the economy but part of

5124
06:35:13,710 --> 06:35:19,150
And part of it is our own board members, our biggest supporters who say, why give money

5125
06:35:19,150 --> 06:35:25,070
if it's just going to go pay insurance premiums and go for this litigation.

5126
06:35:28,680 --> 06:35:29,620
Thank you very much.

5127
06:35:31,200 --> 06:35:35,060
How she recognizes Sheila Jutton,

5128
06:35:37,310 --> 06:35:41,850
J-E-P-T-O-N, Jutton, okay.

5129
06:35:42,870 --> 06:35:44,070
Sheila or Shaila?

5130
06:35:44,350 --> 06:35:44,630
Sheila?

5131
06:35:44,870 --> 06:35:45,190
Sheila.

5132
06:35:45,450 --> 06:35:45,690
All right.

5133
06:35:45,850 --> 06:35:46,690
Sheila Jutton.

5134
06:35:47,150 --> 06:35:51,850
My name is Sheila Jutton and I'm here representing my husband, my children and myself.

5135
06:35:52,150 --> 06:35:52,330
Okay.

5136
06:35:52,410 --> 06:35:57,130
And you are speaking against HDR3 and HJ and HB3.

5137
06:35:57,410 --> 06:35:57,550
The same.

5138
06:35:58,170 --> 06:36:00,350
The same.

5139
06:36:00,350 --> 06:36:03,230
This is a person that you're talking about placing this cap on.

5140
06:36:04,010 --> 06:36:05,150
Anybody wants to see?

5141
06:36:05,390 --> 06:36:07,190
This man looks nothing like this today.

5142
06:36:08,050 --> 06:36:09,810
He looks more like a man of 90 years.

5143
06:36:10,650 --> 06:36:11,970
His legs are smaller than mine.

5144
06:36:13,090 --> 06:36:16,190
This came at the hands of an impaired brain surgeon here in Austin.

5145
06:36:17,850 --> 06:36:22,450
Three years ago, my husband was a six-foot-five, 300-pound former offensive lineman

5146
06:36:22,450 --> 06:36:24,410
and all-American at the University of Texas.

5147
06:36:24,790 --> 06:36:27,170
He played for Cincinnati Bengals and the New Orleans Saints.

5148
06:36:28,170 --> 06:36:32,790
He was 34 years old at the time, a father, a husband to me and the leader of my home.

5149
06:36:33,910 --> 06:36:37,370
Excuse me if I get a little emotional, this I am living, this right now.

5150
06:36:39,470 --> 06:36:42,010
At the hands of a neurosurgeon was

5151
06:36:49,050 --> 06:36:54,710
dependent on opium and alcoholics, had known hand tremors.

5152
06:36:54,910 --> 06:36:58,030
This was known by other people in the hospital, the hospital here in Austin.

5153
06:36:58,930 --> 06:37:00,730
He was allowed to continue practicing.

5154
06:37:00,730 --> 06:37:04,610
seeing he was being treated for depression, was going bank clubs at the time for his

5155
06:37:04,610 --> 06:37:10,250
other entrepreneurial endeavors, was doing neurosurgery in this state, told my husband

5156
06:37:10,250 --> 06:37:16,170
that he could die instantly if he did not have a VP shunt put in his brain, lied to

5157
06:37:16,170 --> 06:37:19,910
our insurance company to get more money saying that my husband had symptoms that he did

5158
06:37:19,910 --> 06:37:24,010
not have but surely does have now, communicating hydrocephalus.

5159
06:37:28,370 --> 06:37:29,510
My husband has been left

5160
06:37:31,680 --> 06:37:35,260
unable to walk or feel most of his right side, has blurred

5161
06:37:35,260 --> 06:37:39,000
in double vision, take the anti-seizure medication,

5162
06:37:39,360 --> 06:37:41,080
have to capitalize and self-serenade,

5163
06:37:41,280 --> 06:37:42,940
can barely feel when you have the bowel movement,

5164
06:37:43,760 --> 06:37:46,100
have bosses write vocal chords, have memory impairment

5165
06:37:46,100 --> 06:37:47,820
and syrinx, which is a slow

5166
06:37:47,820 --> 06:37:50,880
and painful parallelization of your spinal cord.

5167
06:37:52,580 --> 06:37:55,500
This has been an ongoing thing for three and a half years now.

5168
06:37:56,500 --> 06:37:58,100
He has suffered so many indignities

5169
06:37:58,100 --> 06:38:00,140
that no person should have to go through it.

5170
06:38:00,140 --> 06:38:01,740
I just wonder how you, Mr. Nixon,

5171
06:38:01,880 --> 06:38:04,940
or you, Mr. Hull would feel if this was you standing

5172
06:38:04,940 --> 06:38:10,620
in my place right now, and you tell me that $250,000 cap is a fair amount.

5173
06:38:10,900 --> 06:38:15,700
I don't know what a fair amount is, but I don't understand that being the point of this legislation.

5174
06:38:16,240 --> 06:38:21,780
I do understand that according to some of the articles I've read that insurance companies

5175
06:38:21,780 --> 06:38:29,840
like TMLP rate in 128 million annually, they pay out 51 million on claims or defending

5176
06:38:29,840 --> 06:38:30,520
these claims.

5177
06:38:31,000 --> 06:38:33,060
They say they're 40 million in the red.

5178
06:38:33,680 --> 06:38:35,580
Where is the other 116 million?

5179
06:38:36,420 --> 06:38:38,580
Nobody has stood up here that I've heard today.

5180
06:38:38,700 --> 06:38:39,440
I've been here all day.

5181
06:38:40,180 --> 06:38:43,040
Nobody's telling me where this money is going and yet these doctors.

5182
06:38:43,760 --> 06:38:49,060
And please understand that we have probably had between my husband and I both being former athletes,

5183
06:38:49,520 --> 06:38:51,160
me being a woman, having children.

5184
06:38:51,680 --> 06:38:55,600
We've probably had over 200 health care professionals treat us in our lifetime.

5185
06:38:55,600 --> 06:39:02,120
Not once have we ever, until now, desired to have a healthcare provider leave the profession

5186
06:39:02,120 --> 06:39:04,440
like we wish for this man to do so.

5187
06:39:05,360 --> 06:39:09,340
Nobody told us that he had these impairments or that he'd been asked to leave another hospital

5188
06:39:09,340 --> 06:39:10,220
here in Austin.

5189
06:39:11,720 --> 06:39:14,400
There was nowhere I could go to find out about these things.

5190
06:39:15,500 --> 06:39:17,680
That needs to be something that needs to be addressed.

5191
06:39:19,100 --> 06:39:21,460
Would you want somebody that had hand tremors?

5192
06:39:21,460 --> 06:39:25,220
It was well-known among the hospital staff that he had this impairment.

5193
06:39:27,000 --> 06:39:27,980
Nobody told us.

5194
06:39:30,080 --> 06:39:34,020
I realized that y'all don't really care to care about the tragedy that invites my family,

5195
06:39:34,140 --> 06:39:38,360
those of you that are for this bill, because you did not ask one single patient on any of these panels.

5196
06:39:38,860 --> 06:39:42,600
We're getting to come and talk today because we beg to come and talk.

5197
06:39:44,300 --> 06:39:49,440
But I'm speaking here for those that are too busy caring for their loved ones and don't have the family support that I have

5198
06:39:49,440 --> 06:39:52,060
and those that are too impaired to speak for themselves.

5199
06:39:56,130 --> 06:40:07,930
Some of the things I've heard today, such as for people like us, we weren't, at the time that this was happening to us, we had started a business.

5200
06:40:08,170 --> 06:40:16,990
We put almost $100,000 into starting our financial endeavor, and are y'all going to look at, or is the jury going to look at,

5201
06:40:16,990 --> 06:40:20,990
the fact that we made almost no income that you're starting this business, which is a natural

5202
06:40:20,990 --> 06:40:26,370
process for a person starting a business when they look at our economic damages. There's

5203
06:40:26,370 --> 06:40:31,490
so much that goes into a person having to file a lawsuit, what we've been through to

5204
06:40:31,490 --> 06:40:36,850
get a lawsuit. The Texas Medical Board is now supposedly investigating him to face

5205
06:40:36,850 --> 06:40:41,330
on our depositions. It is because of our depositions that it's now public record

5206
06:40:41,330 --> 06:40:47,130
that you can go and look, but who knows to go and look at our depositions about this doctor?

5207
06:40:50,030 --> 06:40:55,610
If you want to know, I don't know what we're suing for. It doesn't matter to me. It won't bring my

5208
06:40:55,610 --> 06:41:01,970
husband back. I honestly don't know. I've never asked. I don't know what a fair cap is, but this

5209
06:41:01,970 --> 06:41:06,870
just seems ludicrous to me that we're choosing to go this path. You're victimizing people like

5210
06:41:06,870 --> 06:41:13,350
my husband all over again. Why? To feed them insurance companies more money, I don't understand

5211
06:41:13,350 --> 06:41:18,430
how much to the CEOs of those companies may. If they're in the red, maybe they need to tighten

5212
06:41:18,430 --> 06:41:24,950
their belts a little bit instead of tightening mine here by this process. I have to really

5213
06:41:24,950 --> 06:41:30,630
disagree with what is being put in front of us today. So thank you for letting me speak.

5214
06:41:32,100 --> 06:41:33,060
Any questions?

5215
06:41:36,330 --> 06:41:37,650
Thank you very much for being here.

5216
06:41:38,210 --> 06:41:38,950
Appreciate your time.

5217
06:41:43,510 --> 06:41:45,990
Chair recognizes John Crutchfield.

5218
06:41:46,430 --> 06:41:49,090
Speak for HB3 and HDR3.

5219
06:42:02,450 --> 06:42:03,230
Oh, is he here?

5220
06:42:03,510 --> 06:42:04,270
John Crutchfield.

5221
06:42:04,770 --> 06:42:05,330
Born once?

5222
06:42:05,730 --> 06:42:05,890
Twice.

5223
06:42:07,970 --> 06:42:08,990
Signed a witness application.

5224
06:42:09,870 --> 06:42:10,530
Affirmation.

5225
06:42:10,930 --> 06:42:11,730
Needed to not testify.

5226
06:42:15,090 --> 06:42:16,410
Joe Ewing.

5227
06:42:18,600 --> 06:42:18,860
Okay.

5228
06:42:19,500 --> 06:42:22,030
To speak for HB3 and HDR3.

5229
06:42:22,030 --> 06:42:29,470
are three. Dr. Ewing. Thank you. Thank you for bringing this bill forward and staying

5230
06:42:29,470 --> 06:42:35,670
here so late with us to hear what we have to say. I'm testifying on behalf of a

5231
06:42:35,670 --> 06:42:41,630
coalition of family practitioners, internists and pediatricians, as well as

5232
06:42:41,630 --> 06:42:48,050
my residency program in Conroe. I'm the director of the program. We have 21

5233
06:42:48,050 --> 06:42:56,590
residents in training and six faculty physicians. We see 25,000 outpatient visits a year and

5234
06:42:56,590 --> 06:43:06,370
another 12,000 in the hospital. Of that patient population, roughly 70% are indigent, uninsured

5235
06:43:06,370 --> 06:43:12,130
and generally poor. We are clearly the safety net for the patients that we see in Montgomery

5236
06:43:12,130 --> 06:43:21,870
County. As I was preparing for our graduation ceremony, June 28th last year, I called our

5237
06:43:21,870 --> 06:43:27,450
malpractice carrier to be sure that we had malpractice coverage in place at 3.30 on Friday

5238
06:43:27,450 --> 06:43:32,890
afternoon. He asked me how I was and I said, I'll be a lot better when I know we've got

5239
06:43:33,370 --> 06:43:38,430
the insurance coverage. He said, well, I'm sorry to tell you, you don't. And it ends

5240
06:43:38,430 --> 06:43:40,010
at midnight Sunday.

5241
06:43:42,340 --> 06:43:48,380
I went to that graduation and tried to put on a happy face until afterwards

5242
06:43:48,380 --> 06:43:54,120
when I called my faculty and residents together to meet with him and give them the bad news.

5243
06:43:54,860 --> 06:44:02,340
I wish you could have seen the shock, horror, amazement, disbelief, anger on their faces.

5244
06:44:02,800 --> 06:44:08,600
The doctors who had come to us for training had no way to know whether they would be

5245
06:44:08,600 --> 06:44:14,820
able to do it. None of us knew whether we had jobs and worst of all, our patients had

5246
06:44:14,820 --> 06:44:23,900
nobody to care for them after midnight on Sunday. We worked very diligently and through the high

5247
06:44:23,900 --> 06:44:28,720
risk pool, the joint underwriting association, we were able to get malpractice insurance

5248
06:44:28,720 --> 06:44:37,620
in place by Tuesday at midnight. That was at a price that was 48 percent higher than

5249
06:44:37,620 --> 06:44:43,600
the amount we had budgeted for it and we're not out of the woods at this point

5250
06:44:43,600 --> 06:44:49,300
yet because four and a half months from now I have to find another four hundred

5251
06:44:49,300 --> 06:44:54,740
and five thousand dollars more in addition to what we're already paying to

5252
06:44:54,740 --> 06:44:59,860
put insurance in place the first of July this year whether we can do that

5253
06:45:00,000 --> 06:45:05,200
That in one way or another will determine the future of our training program.

5254
06:45:08,500 --> 06:45:10,080
The patients

5255
06:45:10,080 --> 06:45:16,440
that we serve will needless to say have to find other sources if they can, and certainly

5256
06:45:16,440 --> 06:45:23,220
the family practitioners that we are training to go into practice in Texas will have to

5257
06:45:23,220 --> 06:45:29,460
find some other way to do it. This is a real crisis, and we greatly appreciate your attention

5258
06:45:29,460 --> 06:45:31,660
Thank you very much doctor.

5259
06:45:32,780 --> 06:45:39,460
I would like to mention just further that during the crisis I called two doctors that I know

5260
06:45:39,460 --> 06:45:47,280
in California who are about my age and have the same scope of practice and my premium for

5261
06:45:47,280 --> 06:45:51,980
equivalent coverage is $50,000, it's actually over $50,000.

5262
06:45:52,680 --> 06:45:57,180
Their malpractice coverage costs them between $15,000 and $16,000 a year.

5263
06:45:57,180 --> 06:45:57,600
All

5264
06:46:04,350 --> 06:46:13,050
right. Doctor, excuse me just a second. With regard to your forms, are you here on

5265
06:46:13,050 --> 06:46:18,610
behalf of the primary care coalition? Yes. Okay. Thank you very much.

5266
06:46:21,290 --> 06:46:22,070
Chair recognizes

5267
06:46:22,070 --> 06:46:30,050
Marcella Johnson to speak against HB3 and against HDR3. Ms. Johnson?

5268
06:46:35,340 --> 06:46:37,360
Okay. Thank you.

5269
06:46:37,360 --> 06:46:42,820
Well, we will indicate that she signed a witness affirmation.

5270
06:46:43,160 --> 06:46:46,180
It did not testify against

5271
06:46:48,360 --> 06:46:49,400
both of those bills.

5272
06:46:52,280 --> 06:46:59,340
Chair recognizes Howard Fletcher against HB3 and against HJR3.

5273
06:47:04,880 --> 06:47:05,820
So, hey, all done.

5274
06:47:06,240 --> 06:47:07,820
Can you just tell us your name?

5275
06:47:08,400 --> 06:47:09,700
Sure. My name is Howard Fletcher.

5276
06:47:09,800 --> 06:47:11,620
I'm here on behalf of my son, Lucas Fletcher.

5277
06:47:15,270 --> 06:47:17,850
It's been a long day. I've listened to just about everything.

5278
06:47:17,850 --> 06:47:24,790
Unfortunately, my odyssey began five years ago when the doctor killed my son during a

5279
06:47:24,790 --> 06:47:25,870
failed four steps to livery.

5280
06:47:26,070 --> 06:47:31,870
He crushed his skull and did to his brain what you would do to a tomato if you squeezed

5281
06:47:31,870 --> 06:47:32,450
a tomato.

5282
06:47:34,010 --> 06:47:39,030
In order to deliver him after the doctor did realize what he had done, he opened my wife

5283
06:47:39,030 --> 06:47:42,630
up without any anesthesia to deliver him.

5284
06:47:42,630 --> 06:47:46,970
took two-year mate resuscitation teams, 13 ministerists

5285
06:47:46,970 --> 06:47:51,290
hesitated him, and he gave him on-life support amongst the

5286
06:47:51,290 --> 06:47:55,850
numerous omissions and errors by numerous doctors and

5287
06:47:55,850 --> 06:47:59,810
health care providers here at Seton Hospital. We ultimately

5288
06:47:59,810 --> 06:48:05,010
filed a lawsuit that seemed to be my only recourse. Three

5289
06:48:05,010 --> 06:48:08,830
years of fighting and going around, around, around with

5290
06:48:08,830 --> 06:48:14,470
the hospital and the defendant's lawyers has kind of given me a little bit of an insight

5291
06:48:14,470 --> 06:48:16,410
as to how this whole process works.

5292
06:48:17,170 --> 06:48:21,650
And the first thing that comes to mind when I read this bill is this issue of CAPS.

5293
06:48:22,730 --> 06:48:27,470
It just stands now we already have CAPS in the sense that if a physician is insured

5294
06:48:27,470 --> 06:48:32,590
for $500,000, which this doctor was, that's all I'm ever going to see.

5295
06:48:33,310 --> 06:48:38,810
If the jury awards $100 million, the TMLT is going to cut me a check for $500,000

5296
06:48:38,810 --> 06:48:41,910
and that's it, they don't appeal it, and that's all I get.

5297
06:48:42,750 --> 06:48:46,350
Considering my son's health care needs exceeded $750,000

5298
06:48:46,350 --> 06:48:47,790
the first three years of his life,

5299
06:48:48,370 --> 06:48:51,050
wiped out a family business that had been in existence

5300
06:48:51,050 --> 06:48:52,470
for three generations.

5301
06:48:55,050 --> 06:48:57,430
Let's see, we've got nine guys unemployed

5302
06:48:57,430 --> 06:49:00,530
and cut another family business that had been in existence

5303
06:49:00,530 --> 06:49:02,190
for four generations and a half.

5304
06:49:02,690 --> 06:49:04,890
I would say the economic impact in our community

5305
06:49:05,330 --> 06:49:06,250
was quite significant.

5306
06:49:06,970 --> 06:49:08,510
So when we're talking about money,

5307
06:49:08,510 --> 06:49:09,530
We're talking about dollars.

5308
06:49:09,710 --> 06:49:10,570
We're talking about caps.

5309
06:49:11,210 --> 06:49:16,370
I think we need to address the issue of if we're going to continue to cap my ability

5310
06:49:16,370 --> 06:49:24,350
and limit my ability to seek recourse in lost wages and in financial losses, then what can

5311
06:49:24,350 --> 06:49:28,550
we do to request that the physicians start putting caps on the damage that they cause?

5312
06:49:29,930 --> 06:49:33,170
We've got a one-sided argument here that hasn't been addressed.

5313
06:49:33,670 --> 06:49:40,310
Now, we did not recover a fraction of the money that it has cost to keep my son alive and care

5314
06:49:40,310 --> 06:49:40,910
for him today.

5315
06:49:41,370 --> 06:49:45,690
Now, I'm tired of just working and trying to keep up with it, and I'm tired of paying

5316
06:49:46,250 --> 06:49:50,230
whatever his health insurance doesn't want to pay because of his previous conditions.

5317
06:49:51,490 --> 06:49:57,530
If the state is going to, again, restrict my limitations in the courtroom, what is

5318
06:49:57,530 --> 06:50:02,630
the state going to be prepared to do to help offset the financial losses that I'm

5319
06:50:02,630 --> 06:50:02,990
and crying.

5320
06:50:05,980 --> 06:50:07,360
Has anybody thought about that?

5321
06:50:09,580 --> 06:50:12,840
Why should I be burdened with an

5322
06:50:12,840 --> 06:50:18,080
estimated $16 million in in health care for my son over the course of his

5323
06:50:18,080 --> 06:50:20,560
lifetime because he got had a bad day at the office?

5324
06:50:23,100 --> 06:50:24,360
I'm sorry about a kid who's got a

5325
06:50:24,360 --> 06:50:28,780
whole lifetime to go. This picture was taken right after I signed the No Resuscitation

5326
06:50:28,780 --> 06:50:29,300
Clause.

5327
06:50:35,570 --> 06:50:39,660
Talk about limits. Somebody better start limiting this.

5328
06:50:42,360 --> 06:50:42,780
Come to my

5329
06:50:42,780 --> 06:50:43,140
house.

5330
06:50:45,270 --> 06:50:49,650
High five, why he's had to endure the pain he's had to endure.

5331
06:50:51,770 --> 06:50:54,570
Epilepsy, 60% of

5332
06:50:54,570 --> 06:50:55,710
his brain is destroyed.

5333
06:50:58,120 --> 06:50:58,960
Who's going to take care of him?

5334
06:51:01,570 --> 06:51:02,970
What state agency is going to

5335
06:51:02,970 --> 06:51:06,650
take care of him? I can tell you what the state Medicaid said. They put him on a seven-year

5336
06:51:06,650 --> 06:51:09,470
wait and there's before they determine whether he was eligible for benefits,

5337
06:51:17,570 --> 06:51:17,830
economic

5338
06:51:17,830 --> 06:51:18,390
loss,

5339
06:51:24,190 --> 06:51:27,750
to divorce their books, to determine where their losses are coming from. They

5340
06:51:27,750 --> 06:51:30,610
We can walk in here and tell you all our losses are due to these frivolous suits.

5341
06:51:31,010 --> 06:51:31,210
I

5342
06:51:35,660 --> 06:51:36,960
have real trouble buying that argument.

5343
06:51:38,160 --> 06:51:40,740
I got real close to CMLT with our lawsuit.

5344
06:51:41,360 --> 06:51:42,440
I know how they operate.

5345
06:51:43,680 --> 06:51:45,460
They're in business just like the next guy.

5346
06:51:46,200 --> 06:51:47,320
They're in it to make a buck.

5347
06:51:47,920 --> 06:51:50,060
I've got no qualms with that.

5348
06:51:50,740 --> 06:51:56,300
But when they can start blaming people like me, and they did, for their losses,

5349
06:51:56,860 --> 06:52:02,440
they needed to divulge their work their paper their books just like I had to do

5350
06:52:02,440 --> 06:52:08,140
to prove my loss my losses and until they do that I don't want to hear another

5351
06:52:08,140 --> 06:52:12,820
word from them I mean I know it sounds kind of bold and bullish but how can

5352
06:52:12,820 --> 06:52:19,500
they do that how can anybody walk in here present an argument but not have

5353
06:52:19,500 --> 06:52:24,540
to support it with one damn fact you know I got a five-year-old brain

5354
06:52:24,540 --> 06:52:30,380
injured son I can drag in here if I don't make everybody happy. We talk about what his life is

5355
06:52:30,380 --> 06:52:38,960
going to be like. So if y'all would, the cap issue, it's a good point. It's the first step and a

5356
06:52:38,960 --> 06:52:44,540
series of steps. It's going to ultimately cap everything anybody will ever be able to recover

5357
06:52:45,580 --> 06:52:53,180
under any circumstances. That's the push. I can see it coming and that's fine. I'll

5358
06:52:53,180 --> 06:52:58,480
until we start addressing the real issue, which is let's get rid of the 5% that are responsible

5359
06:52:58,480 --> 06:53:00,060
for 50-something percent of the lawsuits.

5360
06:53:00,480 --> 06:53:06,180
If you want to cut your losses in half, eliminate those 5% of those bad actors, and we're done.

5361
06:53:07,200 --> 06:53:11,640
Along with some other more common sense approaches to this issue, we can resolve it.

5362
06:53:12,200 --> 06:53:13,900
And I am not anti-doctor.

5363
06:53:14,100 --> 06:53:18,120
I have a slew of doctors to thank for saving his life.

5364
06:53:18,760 --> 06:53:24,640
I have several other doctors, a neurosurgeon, neurologist, a string of doctors that I rely

5365
06:53:24,640 --> 06:53:26,700
on today very heavily for his well-being.

5366
06:53:27,280 --> 06:53:28,240
I don't want them in Texas.

5367
06:53:29,120 --> 06:53:30,960
I need them here to take care of my head.

5368
06:53:32,340 --> 06:53:34,040
So let's get rid of the bad apples.

5369
06:53:34,760 --> 06:53:39,860
Let's start working on this fax on this caps issue and let's start addressing the real

5370
06:53:39,860 --> 06:53:45,180
issue is just get rid of the bad apples and start instead of going forward.

5371
06:53:46,040 --> 06:53:50,180
In my case, they were following the pills until the day they improved the subtle.

5372
06:53:50,860 --> 06:53:53,780
Three years, they fought this dead rain case.

5373
06:53:54,340 --> 06:53:58,220
If they're so busy with civil suits, would they find the time and the money to fight my case?

5374
06:53:58,900 --> 06:54:01,500
When I needed the money, then in there.

5375
06:54:02,160 --> 06:54:05,520
The first two years of your life, that's where all the money went.

5376
06:54:06,440 --> 06:54:07,060
Where were they?

5377
06:54:08,460 --> 06:54:12,520
The defense lawyers were busy just to find their own existence by stringing it out.

5378
06:54:12,520 --> 06:54:18,420
If you're going to cap a plaintiff's lawyer, a cap a defense lawyer, it's all about self-preservation

5379
06:54:18,420 --> 06:54:23,140
but it's being done at the expense of people like my son and I have had it.

5380
06:54:24,360 --> 06:54:25,220
Bill may pass.

5381
06:54:25,600 --> 06:54:26,120
No problem.

5382
06:54:26,220 --> 06:54:26,940
It won't stop me.

5383
06:54:27,700 --> 06:54:31,780
We're going to continue to address this issue until we get to the root of the evil.

5384
06:54:32,380 --> 06:54:37,940
We remove it, eradicate it, and we start taking care of the people who need it the

5385
06:54:37,940 --> 06:54:39,080
most, which are the victims.

5386
06:54:40,340 --> 06:54:41,580
Thank you very much for your time.

5387
06:54:41,580 --> 06:54:43,220
Thank you, Mr. Kledger.

5388
06:54:43,860 --> 06:54:52,940
And so, so that you know, this legislature is approaching just in three separate bills.

5389
06:54:53,420 --> 06:54:53,560
Correct.

5390
06:54:54,120 --> 06:55:02,380
The bill that deals with getting rid of the bad apples, as you said, is the Board of

5391
06:55:02,380 --> 06:55:05,540
Medical Examiner's bill that has already passed out of committee.

5392
06:55:05,940 --> 06:55:10,720
We'll probably have a chance to vote for sometime next, early next week.

5393
06:55:11,820 --> 06:55:16,120
The insurance committee is looking at the underwriting issues

5394
06:55:16,120 --> 06:55:19,160
and the reinsurance issues that Mr. Davis has been asking a lot

5395
06:55:19,160 --> 06:55:20,460
of questions about particularly.

5396
06:55:21,420 --> 06:55:22,720
And so, you know, please.

5397
06:55:23,260 --> 06:55:25,360
Oh, I testified to the state board examiners.

5398
06:55:25,480 --> 06:55:27,280
That was another one issue a year and a half ago.

5399
06:55:28,420 --> 06:55:30,340
Yeah, we're dealing pretty harshly with them.

5400
06:55:31,300 --> 06:55:32,480
Yeah, so.

5401
06:55:32,680 --> 06:55:32,960
It's tired.

5402
06:55:33,580 --> 06:55:34,560
Yeah, it's your heart.

5403
06:55:34,780 --> 06:55:38,100
And you have our prayers and our thoughts both with you

5404
06:55:38,100 --> 06:55:45,360
and some of the people who have testified, we aren't interested in having encouraging

5405
06:55:45,860 --> 06:55:46,440
bad doctors.

5406
06:55:46,680 --> 06:55:48,260
We're trying to deal with them.

5407
06:55:48,380 --> 06:55:53,100
We really wanted to make sure that we keep medical care available in Texas.

5408
06:55:53,720 --> 06:55:58,960
And I just want to make sure that we do like Sheila Jaton and some of the other folks that

5409
06:55:58,960 --> 06:56:04,240
are going to testify, my son, have got to have access and they have got to get there.

5410
06:56:04,640 --> 06:56:07,240
We've been talking about the value of health, the value of an arm.

5411
06:56:07,240 --> 06:56:11,340
the one thing that one single person has brought up here today is that it's all

5412
06:56:11,340 --> 06:56:16,420
about accountability and responsibility. We teach it to our kids, we preach it in

5413
06:56:16,420 --> 06:56:22,280
our churches, and when we turn around, internal back on those two among other

5414
06:56:22,280 --> 06:56:28,020
issues, we have to moralize this country and this state and that is what we're

5415
06:56:28,020 --> 06:56:32,480
doing when we start implementing caps on people who we should be trying to

5416
06:56:32,480 --> 06:56:35,980
I really appreciate you being here. Thanks. Thank you.

5417
06:56:38,180 --> 06:56:44,940
Chair recognizes Dr. Holier, Lisa M. Holier to speak.

5418
06:56:46,100 --> 06:56:46,940
Okay.

5419
06:56:52,700 --> 06:56:53,060
Okay.

5420
06:56:53,600 --> 06:57:00,860
Dr. Holier for HJR 3 and HB 3 to not testify.

5421
06:57:00,860 --> 06:57:01,760
Chair

5422
06:57:11,290 --> 06:57:20,890
recognizes Lewis Garcia to speak for HB3 and HDR3.

5423
06:57:22,150 --> 06:57:27,470
Okay. In favor of both but do not testify.

5424
06:57:34,720 --> 06:57:44,070
Chair recognizes Gavin Gadbury to speak in favor of both HDR3 and HB3.

5425
06:57:44,870 --> 06:57:46,150
Mr. Gadbury.

5426
06:57:51,180 --> 06:57:53,720
Mr. Chairman, members, my name is Gavin Gadbury.

5427
06:57:53,720 --> 06:57:57,420
I, in general counsel to the Texas Health Care Association,

5428
06:57:57,900 --> 06:58:01,980
here testify for both HV3 and HJR3.

5429
06:58:03,780 --> 06:58:06,120
The Texas Health Care Association represents

5430
06:58:07,660 --> 06:58:11,440
approximately 500 health care facilities all across the state

5431
06:58:11,440 --> 06:58:13,480
that are both for-profit and non-profit.

5432
06:58:14,340 --> 06:58:16,700
Other tribes address four issues.

5433
06:58:17,120 --> 06:58:19,900
One, that the cost experiences in nursing facilities,

5434
06:58:20,440 --> 06:58:22,120
and then three of the particular issues

5435
06:58:22,120 --> 06:58:25,340
that are concerned to our membership in HB3.

5436
06:58:26,180 --> 06:58:34,440
In the handout that I've given you, I described a culture of blame that is occurring in our

5437
06:58:34,440 --> 06:58:40,240
society and has created an environment that has become litigious.

5438
06:58:41,580 --> 06:58:48,420
And one thing that we want to make sure is that people continue to have access to the

5439
06:58:48,420 --> 06:58:49,020
court system.

5440
06:58:49,020 --> 06:58:57,100
And Mr. Chairman and members, one thing the Bill HB3 does not do, it does not take away any causes of action.

5441
06:58:58,840 --> 06:59:04,140
You are on this committee will admit to that that this bill does not take away any cause of action.

5442
06:59:04,500 --> 06:59:08,440
It provides limitations on elements of damages.

5443
06:59:08,940 --> 06:59:11,180
It does not take away a cause of action.

5444
06:59:11,320 --> 06:59:14,640
And that is true access to the court if a cause of action has been taken away.

5445
06:59:14,720 --> 06:59:16,800
And that has not occurred in this case.

5446
06:59:17,820 --> 06:59:22,760
What has happened in the long-term carry industry is that expenses have increased dramatically

5447
06:59:22,760 --> 06:59:27,200
over the past seven years, and in the handout I provided you there's a chart on the second

5448
06:59:27,200 --> 06:59:37,760
page, and it shows 1995 loss costs per occupied bed in this state have gone from $1000 to $5,460.

5449
06:59:38,940 --> 06:59:44,720
You interpret that and put that back into how much this is costing in premium dollars.

5450
06:59:44,720 --> 06:59:46,600
That's the total cost.

5451
06:59:46,840 --> 06:59:49,740
We're talking about premium dollars, just insurance premium dollars in the nursing home

5452
06:59:49,740 --> 06:59:50,000
industry.

5453
06:59:50,740 --> 06:59:55,500
The average, you can see that up in the fifth bullet point, second bullet point.

5454
06:59:56,320 --> 06:59:59,500
The weighted average premium for all homes is $1,764.

5455
07:00:02,750 --> 07:00:11,650
And that corresponds to a Medicaid rate of $5 and $69 per patient day, but the state only

5456
07:00:11,650 --> 07:00:18,290
reimburses $2.40 on a Medicaid day for that cost. So there's more than $4 difference in

5457
07:00:18,290 --> 07:00:23,550
what they're reimbursing at that level. If you look on the third page, we would pull

5458
07:00:23,550 --> 07:00:27,890
56 nursing home lawsuits that we could find off blue sheets, and the verdicts are set

5459
07:00:27,890 --> 07:00:33,490
If you look, the 28 cases on non-economic damages totaled over $106 million.

5460
07:00:34,350 --> 07:00:39,710
The 28 verdicts totaled over a billion dollars affecting nursing homes.

5461
07:00:40,070 --> 07:00:44,690
She had the costs that are involved in litigation, and then you have the threat of what these

5462
07:00:44,690 --> 07:00:49,950
huge verdicts could do to a nursing facility out there that it's driving the premium

5463
07:00:49,950 --> 07:00:50,370
costs.

5464
07:00:50,590 --> 07:00:53,510
It's driving the premium costs and driving the availability of the insurance.

5465
07:00:54,010 --> 07:00:58,650
One of the things that's been said often today is that, well, this doesn't look like

5466
07:00:59,830 --> 07:01:01,970
cost involving driving the premium cost.

5467
07:01:02,330 --> 07:01:04,630
It's the investment losses that are driving it.

5468
07:01:04,970 --> 07:01:10,310
And I've listened to Chairman Moore-Mayor and the insurance committee, and I've heard

5469
07:01:10,310 --> 07:01:14,270
him in this committee and other committees, and he's had to answer that question several

5470
07:01:14,270 --> 07:01:14,810
times.

5471
07:01:15,050 --> 07:01:17,830
And he said, no, it doesn't have anything to do with the investment costs.

5472
07:01:18,130 --> 07:01:19,950
It is the loss costs that are involved.

5473
07:01:19,950 --> 07:01:25,730
Last week, he testified before the United States Senate Committee on the Judiciary, and he testified again.

5474
07:01:26,290 --> 07:01:29,710
There are a number of theories regarding the current situation in medical malpractice coverage,

5475
07:01:29,870 --> 07:01:35,790
how the sum of the report clearly indicates that loss trends, increasing amounts paid for claims,

5476
07:01:36,090 --> 07:01:39,930
are the primary cause of rising costs in medical malpractice insurance.

5477
07:01:40,610 --> 07:01:43,930
All other causes are a distant second.

5478
07:01:44,550 --> 07:01:47,590
So it's not investment losses, we're talking about actual losses.

5479
07:01:47,590 --> 07:01:53,810
So, we showed you the grace to nursing facilities, the lost costs that are going on, and the actual

5480
07:01:53,810 --> 07:01:56,370
risk that is out there with the verdicts.

5481
07:01:56,650 --> 07:02:03,170
Non-economic damages, non-economic damages capped at $250,000.

5482
07:02:03,470 --> 07:02:04,190
I hate the word cap.

5483
07:02:04,370 --> 07:02:08,470
There really should be a reasonable limitation on non-economic damages.

5484
07:02:09,710 --> 07:02:14,790
And it's funny, but it's not funny because I'm not God and I don't know how to say

5485
07:02:14,790 --> 07:02:18,410
What is a reasonable amount of money to pay for damages?

5486
07:02:20,150 --> 07:02:21,310
I have no clue.

5487
07:02:21,930 --> 07:02:24,770
But a reasonable amount in 20 other states has been set.

5488
07:02:25,050 --> 07:02:27,110
California set it at $250,000.

5489
07:02:27,830 --> 07:02:30,230
And it's been that way since 1975.

5490
07:02:30,790 --> 07:02:32,130
That's almost 30 years.

5491
07:02:33,710 --> 07:02:39,210
The one other thing that I wanted to clear up is that with regard to the wrongful death statute,

5492
07:02:39,570 --> 07:02:41,930
it has continued to be indexed at $1.4 million.

5493
07:02:41,930 --> 07:02:46,450
$1.4 million. Craig had cleared that up a little bit when he was testifying that it

5494
07:02:46,450 --> 07:02:51,710
is still at $1.4 million. Even though the cap has been tightened with regard to recognizing

5495
07:02:51,710 --> 07:02:56,690
that in the Gromple death cases, PD damages would be limited at $1.4 million in that cap

5496
07:02:56,690 --> 07:03:02,590
and claimance includes everybody. Finally, on the limitation on attorney's fees, the

5497
07:03:02,590 --> 07:03:06,430
attorney's fees have got to be limited and that's something that seems to me that

5498
07:03:06,430 --> 07:03:09,610
It shouldn't be a big argument.

5499
07:03:09,790 --> 07:03:13,090
We're trying to make sure that claims that are truly injured get more money.

5500
07:03:13,270 --> 07:03:16,050
And that's what we're talking about with a limitation on attorney's fees.

5501
07:03:19,510 --> 07:03:21,850
Mr. Gabbard, you used five minutes.

5502
07:03:22,630 --> 07:03:23,810
And Ms. Davis has a question.

5503
07:03:24,010 --> 07:03:26,210
So let me move to her question at this point.

5504
07:03:26,790 --> 07:03:28,050
Thank you. It's not really a question.

5505
07:03:28,210 --> 07:03:32,130
It's more of a comment relative to what the commissioner said a month ago.

5506
07:03:32,750 --> 07:03:38,750
But his folks already said that 70% of the companies are not insured, are not regulated,

5507
07:03:38,830 --> 07:03:42,350
so therefore they don't know what they're, what they're, how they set their premiums.

5508
07:03:42,350 --> 07:03:49,210
So when you talk about it, all it is, it has been provided that there is some cost-associated

5509
07:03:49,210 --> 07:03:51,870
elevation of premiums associated with lawsuits.

5510
07:03:52,090 --> 07:03:56,570
There's also a big, big number of folks that we don't know what they're doing

5511
07:03:56,570 --> 07:03:59,690
and why they have increased premiums because they're not regulated and we don't have

5512
07:03:59,690 --> 07:04:00,630
access to that number.

5513
07:04:00,630 --> 07:04:04,690
And so I just want to make sure you represent the 70% of the stuff we've never seen in a

5514
07:04:04,690 --> 07:04:04,990
commission.

5515
07:04:05,290 --> 07:04:07,750
He doesn't know how they make that determination.

5516
07:04:08,070 --> 07:04:09,450
For God's long-term care.

5517
07:04:09,610 --> 07:04:10,130
Excuse me.

5518
07:04:10,330 --> 07:04:13,270
Let me finish the other point that you made with regard to this.

5519
07:04:14,230 --> 07:04:18,130
You know, as you talked about the cost of beds.

5520
07:04:18,650 --> 07:04:24,890
And it sounds like you had a Medicare issue with regard to what the reimbursement rate

5521
07:04:24,890 --> 07:04:25,210
is.

5522
07:04:25,690 --> 07:04:26,090
Yes, ma'am.

5523
07:04:26,150 --> 07:04:26,630
You mentioned that.

5524
07:04:26,630 --> 07:04:29,930
And I just think that that's an appropriate dialogue

5525
07:04:29,930 --> 07:04:33,170
for more else because I think that we agree that probably

5526
07:04:33,170 --> 07:04:37,150
the numbers too low but to suggest that that's a basis

5527
07:04:37,150 --> 07:04:39,550
for hitting somewhere else that makes sense to me either.

5528
07:04:39,850 --> 07:04:41,950
So, and I know you do this all the time

5529
07:04:41,950 --> 07:04:44,150
so that's why I wanted you to make sure you cleared

5530
07:04:44,150 --> 07:04:45,930
up those kinds of points in your presentation.

5531
07:04:47,250 --> 07:04:50,770
What we're trying to clear up is that the amount,

5532
07:04:51,070 --> 07:04:53,810
if we don't clear up the amount of it, it's going

5533
07:04:53,810 --> 07:04:55,970
to become an appropriations issue

5534
07:04:55,970 --> 07:04:56,750
for the state of Texas.

5535
07:04:57,510 --> 07:05:00,070
And that's the main issue that I want to bring forward is

5536
07:05:00,070 --> 07:05:02,610
that this is one way that insurers tell us

5537
07:05:02,610 --> 07:05:04,050
that they can reduce the premium.

5538
07:05:04,630 --> 07:05:06,370
Whether it happened or not, I don't know.

5539
07:05:06,710 --> 07:05:09,110
But in Texas over 50% of the nursing facilities are

5540
07:05:09,110 --> 07:05:13,270
without insurance and they have one carrier in the retail

5541
07:05:13,270 --> 07:05:15,910
market that is not admitted and then they have the JUA.

5542
07:05:16,150 --> 07:05:16,470
That's it.

5543
07:05:17,310 --> 07:05:18,670
So there's not a real in the market.

5544
07:05:18,810 --> 07:05:20,130
There's not anything to roll back.

5545
07:05:20,290 --> 07:05:21,890
There's not any rates to roll back out there

5546
07:05:21,890 --> 07:05:24,350
with the long-term care market on insurance.

5547
07:05:24,350 --> 07:05:28,010
There's nothing to regulate either because we're not a regulated market out here.

5548
07:05:37,870 --> 07:05:41,270
We appreciate your work on this, Mr. Chairman. We look forward to working with you.

5549
07:05:42,670 --> 07:05:55,550
Chair recognizes Kim Tuff to speak against both H.A.R.3 and H.B.3.

5550
07:06:02,750 --> 07:06:05,470
I am Kim Tett and I'm from Tyler, Texas.

5551
07:06:06,230 --> 07:06:10,130
I'm a 36 year old married homemaker with two young sons.

5552
07:06:11,030 --> 07:06:16,790
Two years ago I was told by my doctor that I had small cell neuroendocrine carcinoma

5553
07:06:16,790 --> 07:06:20,190
in my jaw and I was given roughly three months to live.

5554
07:06:22,290 --> 07:06:31,730
So my only option that I was given by my doctors was to remove this half of my jaw, replace

5555
07:06:31,730 --> 07:06:33,430
it with a bone for my leg.

5556
07:06:35,070 --> 07:06:36,670
And we did that.

5557
07:06:36,830 --> 07:06:42,230
I mean I had two small children and it didn't matter, you know, what it cost, how much

5558
07:06:42,230 --> 07:06:48,330
it hurt or anything, but anytime I could get with them with all that I was thinking

5559
07:06:48,330 --> 07:06:48,670
about.

5560
07:06:48,670 --> 07:06:54,530
I've undergone five procedures so far and I've still got more to go.

5561
07:06:55,370 --> 07:07:00,270
I went into my surgeon's office one day because he called and said we need to come to Dallas.

5562
07:07:01,030 --> 07:07:07,970
And he told us that there was a pathology mistake and that I did not then, nor did I ever

5563
07:07:07,970 --> 07:07:08,810
have cancer.

5564
07:07:09,910 --> 07:07:16,570
My specimen was cross-contaminated at the pathologist's lab in Howard.

5565
07:07:16,570 --> 07:07:25,950
So all of my pain and suffering that I've been through and that I can continue to go through has been completely preventable.

5566
07:07:26,910 --> 07:07:45,590
The doctor testified that rather than check his own records to see if there was another case of small cell carcinoma the day that he diagnosed mine because it's rare, he caught his receptionist and that's her to pull the records.

5567
07:07:45,590 --> 07:07:50,630
records. She called him and said, no, there's nothing. So he didn't raise a red flag with

5568
07:07:50,630 --> 07:07:58,290
anybody. He didn't let any of my surgeons know. And he then testified that it took him,

5569
07:07:58,350 --> 07:08:02,570
after the doctors and Dallas called him, it took him less than ten minutes to go to

5570
07:08:02,570 --> 07:08:08,290
that day's records and find that there was someone who has mops up cancer. So had he

5571
07:08:08,290 --> 07:08:14,290
done it competently, instead of asking his receptionist to do it, I wouldn't be

5572
07:08:14,290 --> 07:08:15,670
here right now.

5573
07:08:17,530 --> 07:08:21,630
And I mean we have to find a way to get rid of the bad doctors.

5574
07:08:22,590 --> 07:08:26,430
Penalizing me and the rest of the victims isn't the answer.

5575
07:08:27,070 --> 07:08:29,330
Capping damages isn't going to work.

5576
07:08:30,290 --> 07:08:33,290
It is a disincentive to good healthcare.

5577
07:08:33,770 --> 07:08:38,870
Why work smarter when there is no penalty for mediocre?

5578
07:08:40,960 --> 07:08:43,740
Caps on damages is a green light for the bad doctors.

5579
07:08:43,740 --> 07:08:49,880
Basic logic will tell you that one-size-fits-all cap on damages will not work.

5580
07:08:50,220 --> 07:08:54,540
Mistakes come in all sizes, damage awards should too.

5581
07:08:55,260 --> 07:09:02,700
In a recent Harvard Medical School study, it shows that 90,000 people die annually

5582
07:09:03,200 --> 07:09:04,640
due to medical mistakes.

5583
07:09:05,360 --> 07:09:16,400
That is roughly equivalent to a major airline carrier crashing every day with 250 to 300

5584
07:09:16,400 --> 07:09:17,320
people on board.

5585
07:09:18,220 --> 07:09:21,720
And we all know what would happen if that happened.

5586
07:09:24,370 --> 07:09:25,850
I am a conservative Republican.

5587
07:09:26,370 --> 07:09:31,970
I voted for Bush, both as Governor and as President, and I'm here to tell all of you

5588
07:09:31,970 --> 07:09:34,930
that medical malpractice can happen to anyone.

5589
07:09:34,930 --> 07:09:41,790
It's not only the liberal Democrats who are harmed and file suit, but conservative Republicans too.

5590
07:09:42,570 --> 07:09:49,210
Would any of you accept the experiences that I have endured and continue to endure for $12 a day?

5591
07:09:50,170 --> 07:09:50,610
Would you?

5592
07:09:51,610 --> 07:09:53,910
I don't think any of you would.

5593
07:09:54,210 --> 07:09:56,070
And I don't think anybody in the room would either.

5594
07:10:02,230 --> 07:10:03,090
Thank you, Mr. Todd.

5595
07:10:03,090 --> 07:10:03,850
Chair

5596
07:10:06,790 --> 07:10:16,170
recognizes George Roberts, Jr., to talk for HB3 and HDR3.

5597
07:10:16,890 --> 07:10:21,270
Can you tell us who you are and who you represent?

5598
07:10:21,530 --> 07:10:21,690
Sure.

5599
07:10:21,950 --> 07:10:22,790
My name is George Roberts.

5600
07:10:23,070 --> 07:10:26,790
I'm the Chief Executive Officer of Henderson Memorial Hospital, Henderson, Texas.

5601
07:10:27,630 --> 07:10:32,330
I am representing my hospital, our physicians, and also the Texas Hospital Association.

5602
07:10:33,010 --> 07:10:37,270
It's been an interesting and memorable day for all of us in the room and I will try to

5603
07:10:37,270 --> 07:10:38,350
make my points briefly here.

5604
07:10:39,110 --> 07:10:43,450
The first thing, my written testimonies before you, I'm just going to hit a couple of points

5605
07:10:43,450 --> 07:10:44,990
here because I know the hour is late.

5606
07:10:45,470 --> 07:10:45,970
Thank you.

5607
07:10:46,150 --> 07:10:48,150
First thing is our premium experience.

5608
07:10:48,810 --> 07:10:52,290
Thank you for from several witnesses that have told you about their premium experiences.

5609
07:10:53,550 --> 07:10:56,390
My Odyssey started in about premium year 2000.

5610
07:10:56,870 --> 07:11:02,310
I paid $169,000 that year for our hospital's malpractice insurance with a $5,000

5611
07:11:02,310 --> 07:11:09,410
deductible. This year I'm paying $494,000 for the $100,000 deductible. That's triple

5612
07:11:09,410 --> 07:11:16,450
the insurance 20 times to the deductible rate. In the same period of time, Medicare, Medicaid,

5613
07:11:16,770 --> 07:11:21,290
the obvious thing there is have your rates gone up? They obviously have not tripled.

5614
07:11:21,410 --> 07:11:26,410
As a matter of fact, my Medicare and Medicaid reimbursements has declined. My Medicaid disproportionate

5615
07:11:26,410 --> 07:11:31,570
share payments have gone down that same period $1.2 million per year. At the same

5616
07:11:31,570 --> 07:11:36,450
time I've had to face an increase in the cost of liability. We've had the workforce issues

5617
07:11:36,450 --> 07:11:39,970
that you guys are aware of that we've all tried to address in the state with nurses,

5618
07:11:40,450 --> 07:11:46,970
with physicians, with radiology technologists, pharmacists, etc. We've also had failed to

5619
07:11:46,970 --> 07:11:49,810
maintain adequate reimbursement. As a matter of fact my hospitals lost money in the last

5620
07:11:49,810 --> 07:11:55,730
three years. That's tough. And in rural America, rural hospitals, if you're from

5621
07:11:55,730 --> 07:11:59,310
Georgetown that's considered a rural hospital. Georgetown Hospital is one of the largest

5622
07:11:59,310 --> 07:12:02,910
hospitals in the Georgetown area. Henderson Memorial Hospital in Henderson, Texas is

5623
07:12:02,910 --> 07:12:06,550
one of the top five employers. If something were to happen to my hospital, that would

5624
07:12:06,550 --> 07:12:08,950
be absolutely devastating to the Henderson-Russ County community.

5625
07:12:10,910 --> 07:12:14,090
And really, that's one of the things that we're facing here is, you know, liability.

5626
07:12:14,570 --> 07:12:18,710
The healthcare system that you're hearing today is really on a, it's a perfect storm

5627
07:12:18,710 --> 07:12:22,990
or really on a cusp of a huge issue here. Liability reform is one thing that can

5628
07:12:22,990 --> 07:12:27,510
be done to help correct this problem. You guys are facing a $9.9 billion deficit

5629
07:12:27,510 --> 07:12:31,870
it right now. And, you know, one of the things that can be done, perhaps to help hospitals

5630
07:12:31,870 --> 07:12:36,610
like mine and hospitals across the state, if we can do something lower the caps, the

5631
07:12:36,610 --> 07:12:42,150
rollbacks, the things that I'm supporting, the HB3 and the HJ33, the things that we

5632
07:12:42,150 --> 07:12:47,890
can do to do that is going to be crucial. Third point, physicians, I have an OBGYN

5633
07:12:47,890 --> 07:12:52,870
in my community. I have one of two OBGYNs. She lost her commercial insurance a couple

5634
07:12:52,870 --> 07:12:59,890
years ago. She had to go to the pool. Her rates doubled. And she's down to late 50s. She is,

5635
07:12:59,930 --> 07:13:03,730
you know, looked at her and she's retired a few years. If she has to deal with, you know,

5636
07:13:03,770 --> 07:13:07,490
another double time sort of increase in malpractice coverage, she's going to quit practicing.

5637
07:13:08,530 --> 07:13:12,130
She does it basically. She delivered my child. So I don't want her to quit

5638
07:13:12,130 --> 07:13:17,610
practicing anytime soon. Summary, I support this bill. I think we've got to do something here.

5639
07:13:17,950 --> 07:13:21,070
Is this the total fix? I think you can all link. We all know the answer to that.

5640
07:13:21,070 --> 07:13:23,510
This is one step in the process, but we've got to start somewhere.

5641
07:13:23,690 --> 07:13:28,310
We've got to start now, and I very much appreciate Charles' indulgence in staying here

5642
07:13:28,310 --> 07:13:28,830
until eight hours.

5643
07:13:28,970 --> 07:13:29,230
I'm impressed.

5644
07:13:29,370 --> 07:13:33,230
I'm sure your overtime rates are going up immensely right now, but I appreciate you

5645
07:13:33,230 --> 07:13:36,390
letting me have the chance to speak, and I hope that you all will take action on

5646
07:13:36,390 --> 07:13:36,770
this this year.

5647
07:13:37,430 --> 07:13:38,370
Thank you very much.

5648
07:13:40,590 --> 07:13:42,130
The Chair recognizes Aaron Young.

5649
07:13:47,340 --> 07:13:54,020
Mr. Young has indicated that he is going to testify against both H.J.R.3 and H.B.3.

5650
07:13:54,020 --> 07:13:55,960
If you're young, please identify yourself.

5651
07:13:56,300 --> 07:14:02,320
My name is Aaron Young and I'm from Houston and I'm here representing my daughter who's

5652
07:14:02,320 --> 07:14:05,100
four years old and in bed by now, I hope.

5653
07:14:06,860 --> 07:14:13,420
My concern is the non-economic damages part that is going with this bill.

5654
07:14:14,620 --> 07:14:18,920
I've heard in here all day, I sat in in one of the other meetings earlier and I've

5655
07:14:18,920 --> 07:14:25,380
I heard no one say today that a damaged cap of $250,000 will bring the insurance premiums

5656
07:14:25,380 --> 07:14:28,740
down for doctors, will bring the premiums for doctors down.

5657
07:14:30,800 --> 07:14:38,120
So why should we have to include a non-economic damage cap if it's not going to help?

5658
07:14:40,020 --> 07:14:43,360
If people are bad drivers, their insurance goes up.

5659
07:14:44,140 --> 07:14:49,720
Why not take care of the bad doctors, make their insurances go up while reward the

5660
07:14:49,720 --> 07:14:54,900
good doctors. I've been a paramedic for eight years. I've seen just about every

5661
07:14:54,900 --> 07:14:59,960
single form of death there is. I've delivered stillborns and I've seen a

5662
07:15:00,000 --> 07:15:05,200
A lady who's 102 years old died. Saddest person I've ever seen die was my wife at the hands

5663
07:15:05,200 --> 07:15:11,620
of three doctors who are treating a simple asthma attack. I deal with people with asthma

5664
07:15:11,620 --> 07:15:16,340
attacks every single day. There was a guy here earlier who was a doctor from Montgomery County.

5665
07:15:16,700 --> 07:15:20,500
I work in Montgomery County. I kind of got a chuckle at what he was talking about.

5666
07:15:22,580 --> 07:15:23,060
He's

5667
07:15:23,060 --> 07:15:30,240
I wish he was still here so I could talk to him about this 70% of my counting that we'll

5668
07:15:30,240 --> 07:15:36,140
now have to find other health care because of the doctors that he's with don't have medical

5669
07:15:36,640 --> 07:15:37,740
malpractice insurance anymore.

5670
07:15:38,380 --> 07:15:43,060
Those people aren't going to move out of the counting unless those people live in fifth

5671
07:15:43,060 --> 07:15:44,620
generation single wide trailers.

5672
07:15:46,740 --> 07:15:49,380
It's hard for people out there to find good doctors.

5673
07:15:51,580 --> 07:15:57,880
and I think we should really reward good doctors, but I really think we should really get rid of the bad ones.

5674
07:15:58,740 --> 07:16:04,320
So please don't take it out on those who need it the most because of the insurance company's bad judgment.

5675
07:16:05,880 --> 07:16:07,000
That's all I really have to say.

5676
07:16:07,880 --> 07:16:08,940
Thank you very much.

5677
07:16:13,700 --> 07:16:16,360
Chair recognizes David Tischer,

5678
07:16:18,900 --> 07:16:23,460
so to speak for HB3 and HDR3.

5679
07:16:23,780 --> 07:16:24,560
Dr. Tischer,

5680
07:16:27,900 --> 07:16:29,580
in case he recognizes

5681
07:16:38,670 --> 07:16:44,930
Mary Botkin, to speak for HDR3 and HB3.

5682
07:16:46,290 --> 07:16:47,390
Ms. Botkin,

5683
07:16:59,320 --> 07:17:02,560
Chair recognizes Charles Bailey to speak,

5684
07:17:04,730 --> 07:17:07,410
HB3 and HDR3,

5685
07:17:09,430 --> 07:17:10,030
he's here.

5686
07:17:32,360 --> 07:17:38,480
That's alright, you know Mr. Bailey has indicated that he is a technical expert in here on behalf

5687
07:17:38,480 --> 07:17:43,000
of Texas Hospital Association and I think at this point we've had all the technical

5688
07:17:43,000 --> 07:17:44,640
expertise we could stand.

5689
07:17:48,320 --> 07:17:52,520
I'm going to indicate that he did not testify and I don't believe

5690
07:17:52,520 --> 07:17:55,580
that we need Mr. Bailey if he doesn't come back.

5691
07:17:57,880 --> 07:18:02,460
Brent Cooper is here to testify for

5692
07:18:02,460 --> 07:18:09,920
HB3 and HJR3. Okay, but he is in favor of the bill here on behalf of

5693
07:18:13,600 --> 07:18:14,060
himself.

5694
07:18:24,650 --> 07:18:25,290
Cooper

5695
07:18:25,290 --> 07:18:29,070
to speak in favor of H.J.3 and H.B.3.

5696
07:18:46,940 --> 07:18:52,980
David Thomason to speak for H.B.3 and H.J.R.3.

5697
07:18:55,480 --> 07:19:00,280
It's here on behalf of Texas Association of Homes and Services for the Aging.

5698
07:19:00,760 --> 07:19:00,860
It

5699
07:19:03,320 --> 07:19:04,300
was in favor of both

5700
07:19:08,530 --> 07:19:10,590
John R. Tilley.

5701
07:19:11,350 --> 07:19:16,950
Chair recognizes John Mr. Tilley to speak for H.B.3 and H.J.R.3.

5702
07:19:16,950 --> 07:19:17,550
Do

5703
07:19:30,800 --> 07:19:34,600
you recognize this Mary Roe, Alasire,

5704
07:19:36,940 --> 07:19:39,200
who is neutral,

5705
07:19:41,960 --> 07:19:43,320
is that it, is this the last one?

5706
07:19:44,540 --> 07:19:53,360
Mary Roe, Alasire, who is here neutrally on Hj3 and HjR3, HB3, I should.

5707
07:19:53,680 --> 07:19:55,200
Yes, I've been neutralized.

5708
07:19:56,700 --> 07:19:59,460
Yes, I guess I will speak neutrally.

5709
07:20:03,320 --> 07:20:04,540
It's really not funny.

5710
07:20:04,920 --> 07:20:06,640
No, please, please identify yourself.

5711
07:20:06,940 --> 07:20:07,400
Okay.

5712
07:20:07,680 --> 07:20:10,760
My name is Mary Roe Elshar and I live in Austin, Texas.

5713
07:20:11,740 --> 07:20:17,200
I worked at the Texas Legislature for sessions, two sessions in the House of Representatives

5714
07:20:17,200 --> 07:20:18,720
and two sessions in the Senate.

5715
07:20:19,740 --> 07:20:26,720
I worked for Senator Parker from Port Arthur in 1977, the last week of the legislative

5716
07:20:26,720 --> 07:20:27,300
session.

5717
07:20:28,260 --> 07:20:30,500
I had a nervous breakdown.

5718
07:20:30,500 --> 07:20:40,220
I was a rape victim and went into Shoe Creek Hospital and while I was in there they clipped

5719
07:20:40,220 --> 07:20:47,860
a bunch of stuff in the back of my head without my permission and it was like during the medical

5720
07:20:47,860 --> 07:20:56,820
malpractice debate when Senator Parker was part of the legislation he was carrying.

5721
07:21:00,340 --> 07:21:08,780
And I got out of the hospital in June after the session was over and I was the secretary

5722
07:21:10,820 --> 07:21:18,160
and I couldn't type because of what they'd done to me, my hand, my hand

5723
07:21:20,240 --> 07:21:25,280
and I couldn't

5724
07:21:27,780 --> 07:21:34,160
to answer the phone, I had to put it like this so that I could type it at the same time.

5725
07:21:41,700 --> 07:21:50,260
So I thought my boss was being relaxed when he moved me to his garage apartment in Port

5726
07:21:50,260 --> 07:21:57,440
Arthur to live for six months until I realized later on that that was the statute of limitation

5727
07:21:57,440 --> 07:22:01,840
that if I didn't do anything during that period that he would be off scot-free.

5728
07:22:04,550 --> 07:22:05,070
A

5729
07:22:09,870 --> 07:22:17,900
friend of mine, a state representative, was going to come to Austin to do something about it in 1993

5730
07:22:18,400 --> 07:22:25,360
and the week before he came to the beginning of this legislative session he had a heart attack

5731
07:22:25,360 --> 07:22:30,000
and died. Representative Jim Browder from Cold Spring.

5732
07:22:36,360 --> 07:22:40,980
I've been told that if

5733
07:22:44,280 --> 07:22:44,960
I could get

5734
07:22:44,960 --> 07:22:52,320
half of the members of the Senate plus one to sign on a special resolution that I could

5735
07:22:52,320 --> 07:22:53,340
take this to court.

5736
07:23:06,810 --> 07:23:11,970
Seventy-seven it's been, what is that, twenty-six years? It's been

5737
07:23:11,970 --> 07:23:15,350
long, it's been a long time. What

5738
07:23:18,330 --> 07:23:22,730
I have to say is, I've been sitting here and I've been

5739
07:23:22,730 --> 07:23:29,250
listening to this all day long and it's bringing back so many memories because the man I was

5740
07:23:29,250 --> 07:23:33,970
living with at the time is the lobbyist for the trial lawyers association.

5741
07:23:33,970 --> 07:23:34,770
When

5742
07:23:44,340 --> 07:23:51,740
he came in here tonight, let's see what, so what I have to say about this, okay, I've

5743
07:23:51,740 --> 07:24:00,580
heard y'all talk about the doctors and the insurance companies and the lawyers, okay,

5744
07:24:00,980 --> 07:24:03,840
these three main groups, well,

5745
07:24:07,180 --> 07:24:13,080
70 to 80 people who called Paula Sweeney didn't get

5746
07:24:13,080 --> 07:24:18,140
any service. For every 70 to 80 people who called her, she was only able to help one.

5747
07:24:19,840 --> 07:24:28,620
Okay, I'm here to speak on behalf of the 70 to 80 people who are not brought into this

5748
07:24:28,620 --> 07:24:29,120
equation.

5749
07:24:33,630 --> 07:24:37,530
And the

5750
07:24:42,400 --> 07:24:49,280
doctors, audiologists, goodbye. You know, if you don't want to live in Texas

5751
07:24:49,280 --> 07:24:57,540
than so be it. My grandfather was a medical doctor. They bartered. He had a whole gun

5752
07:24:57,540 --> 07:25:02,620
cabinet full of guns, because that's what you did for services. You bartered for your

5753
07:25:02,620 --> 07:25:09,600
services. Now, since I worked at the legislature for four sessions and my ex-husband was

5754
07:25:09,600 --> 07:25:13,040
county judge in Travis County for 12 years, the top elected official,

5755
07:25:15,300 --> 07:25:16,860
I know a lot about

5756
07:25:16,860 --> 07:25:23,740
politics and people are concerned about, well, how many votes am I going to get if I go with

5757
07:25:23,740 --> 07:25:28,140
this piece of legislation or how many are that? What I'm saying is, do I have that many

5758
07:25:28,140 --> 07:25:35,300
doctors compared to the number of voters in your district? They're really art, but

5759
07:25:35,300 --> 07:25:39,260
they're a whole bunch of us. They're a whole bunch of us.

5760
07:25:42,040 --> 07:25:44,000
And you got to do what's

5761
07:25:44,000 --> 07:25:53,600
right for us first. You got to do what's right for the most of the people. And I know that

5762
07:25:53,600 --> 07:26:00,520
you're doing this because you don't want to feel responsible for patients not having treatment

5763
07:26:00,520 --> 07:26:10,900
by physicians, but that's not your responsibility. It really isn't. It's a patient's responsibility.

5764
07:26:11,440 --> 07:26:19,300
So, I'd like to end by just saying please change it that I'm against.

5765
07:26:19,700 --> 07:26:21,740
I don't want to speak on this legislation.

5766
07:26:22,000 --> 07:26:23,640
I prefer to speak against.

5767
07:26:25,380 --> 07:26:26,960
Thank you very much, Ms. Allesha.

5768
07:26:27,120 --> 07:26:28,160
I appreciate you being here.

5769
07:26:31,200 --> 07:26:31,320
Yes.

5770
07:26:40,490 --> 07:26:47,770
Chair recognizes Robert Dye to speak against the bill, HB3 and against HJR3.

5771
07:26:52,720 --> 07:26:55,320
Mr. Dye, could you tell us who you are for the record, please?

5772
07:26:55,320 --> 07:27:03,600
Yes. My name is Robert Dye. Thank you. I'm here for myself and my life. And I've come

5773
07:27:03,600 --> 07:27:17,120
to address the non-economic damages. I think from what you've heard, this $250,000 catch-all

5774
07:27:17,120 --> 07:27:27,100
doesn't catch it off. In my case, in January of 2000, I was diagnosed with prostate cancer.

5775
07:27:29,660 --> 07:27:40,100
I did several months of research, books, looking on the internet, and I found that prostate

5776
07:27:40,100 --> 07:27:48,780
cancer is a very slow cancer. Usually it's an old man, and it could be treated several

5777
07:27:48,780 --> 07:27:56,660
four different ways, chemotherapy or radiation. Also, it could be operated on and removed.

5778
07:27:57,620 --> 07:28:04,560
In my research I found that if you just had it treated with radiation or chemotherapy,

5779
07:28:05,000 --> 07:28:11,900
you could get rid of it. But if it came back, your life expectancy on the outside was

5780
07:28:11,900 --> 07:28:22,300
five years. I was 52 years old. That wasn't an option for me. So I had a radical prostatectomy.

5781
07:28:24,710 --> 07:28:30,990
Three days after that I was released. Three days after that my doctor called me up and said,

5782
07:28:31,050 --> 07:28:36,650
I need to talk to you. And when I went to see him he said, I have some good news for you and

5783
07:28:36,650 --> 07:28:40,610
I have some bad news for you. I said, well, give me the bad news.

5784
07:28:40,610 --> 07:28:42,270
He said, maybe the good news was how I'm great.

5785
07:28:42,990 --> 07:28:44,430
He says, you don't have cancer.

5786
07:28:48,280 --> 07:28:49,640
I said, no, that's the good news.

5787
07:28:50,060 --> 07:28:52,420
He said, no, you don't have cancer.

5788
07:28:53,220 --> 07:28:54,060
He never did.

5789
07:29:03,510 --> 07:29:04,970
There's a lot of wages over this.

5790
07:29:08,660 --> 07:29:11,680
So when it comes to the economic damages,

5791
07:29:12,340 --> 07:29:13,980
that's basically all I have.

5792
07:29:18,320 --> 07:29:22,480
If you think about it, I'm not the only one that lost

5793
07:29:30,790 --> 07:29:31,830
as much as I did.

5794
07:29:33,230 --> 07:29:34,930
We've been married for three years

5795
07:29:34,930 --> 07:29:35,730
And

5796
07:29:38,670 --> 07:29:43,910
when you're told you have cancer, you forget about all the other stuff.

5797
07:29:44,430 --> 07:29:47,890
You just think about, well, I want to be with this person.

5798
07:29:48,190 --> 07:29:49,570
I'll do what it takes to be there.

5799
07:29:50,050 --> 07:29:51,730
And you heard that from several people.

5800
07:29:53,680 --> 07:29:55,860
So you have to trust the medical profession.

5801
07:29:56,660 --> 07:29:59,240
Lo and behold what had happened with pathologists.

5802
07:30:00,000 --> 07:30:08,220
Had switched slides. So I was told I had cancer, and a man that really had cancer was told he was cancer-free.

5803
07:30:10,340 --> 07:30:18,380
Fortunately, like I said, it's a slow-growing cancer, and they contacted him. I have no idea what happened.

5804
07:30:18,520 --> 07:30:25,640
I just know they contacted him and told him that, yes, you do have cancer. I don't know what treatment he went through or what was the results.

5805
07:30:25,640 --> 07:30:34,220
All I know is that my life was altered from that point on because of a mistake.

5806
07:30:36,340 --> 07:30:46,030
And if you want to know what there would be, not one penny less than what it would take

5807
07:30:46,430 --> 07:30:53,590
to change that man's life to be like mine, to change his lifestyle like I've had to change

5808
07:30:53,590 --> 07:30:54,350
my lifestyle.

5809
07:30:55,190 --> 07:30:56,270
That's what it's worth.

5810
07:30:57,050 --> 07:30:57,850
Thank you.

5811
07:30:57,970 --> 07:30:58,330
Thank you.

5812
07:31:00,530 --> 07:31:01,110
Yes.

5813
07:31:01,430 --> 07:31:03,110
So we have a question.

5814
07:31:04,090 --> 07:31:05,250
Did you sue in that case?

5815
07:31:05,570 --> 07:31:06,250
Yes, I did.

5816
07:31:06,430 --> 07:31:06,690
And I won.

5817
07:31:06,830 --> 07:31:07,310
Did you recover?

5818
07:31:08,350 --> 07:31:08,930
Sorry.

5819
07:31:09,670 --> 07:31:10,090
Can't tell you.

5820
07:31:17,680 --> 07:31:27,580
Chair recognizes Mary Hennigan to speak in favor of HB3 and in favor of HJR3.

5821
07:31:28,900 --> 07:31:29,800
Ms. Hennigan.

5822
07:31:29,800 --> 07:31:32,840
I'll testify.

5823
07:31:40,630 --> 07:31:49,750
Chair recognizes Sid Rich to speak for HB3 and HR3.

5824
07:31:51,010 --> 07:31:52,370
Mr. Rich,

5825
07:32:02,260 --> 07:32:11,140
Chair recognizes Robert Cotsman, Dr. Cotman, for HB3 and HR3.

5826
07:32:16,700 --> 07:32:20,020
Doctor, can you tell us your name and who you represent?

5827
07:32:20,860 --> 07:32:25,120
I'm Bob Cotman. I'm an emergency physician practicing the last 27 years in San Antonio.

5828
07:32:25,400 --> 07:32:28,180
I'll make this very brief as it possibly can.

5829
07:32:28,780 --> 07:32:32,880
I just want to tell you about the problems that patients are already experiencing with

5830
07:32:32,880 --> 07:32:36,660
access to appropriate medical care when they have an emergency medical condition.

5831
07:32:37,440 --> 07:32:41,440
I can illustrate this with a case that I had about a gentleman I saw back in December

5832
07:32:42,420 --> 07:32:44,820
who had a spontaneous brain hemorrhage.

5833
07:32:44,900 --> 07:32:48,260
He had an aneurysm in his brain which suddenly burst and he had a brain hemorrhage

5834
07:32:48,260 --> 07:32:49,680
which was creating pressure on his brain.

5835
07:32:50,600 --> 07:32:52,460
The problem with this particular case

5836
07:32:52,460 --> 07:32:54,620
was I knew this patient required immediate referral

5837
07:32:55,500 --> 07:32:56,600
to a neurosurgeon.

5838
07:32:57,620 --> 07:33:00,200
The difficulty is the five-hospital system

5839
07:33:00,200 --> 07:33:01,060
which I practiced,

5840
07:33:01,380 --> 07:33:04,200
we had lost virtually all of our neurosurgery coverage

5841
07:33:04,760 --> 07:33:05,740
in the past year.

5842
07:33:06,720 --> 07:33:09,480
We only have one neurosurgeon who takes call

5843
07:33:09,480 --> 07:33:10,560
for all five hospitals

5844
07:33:10,560 --> 07:33:12,860
and he takes call the first 10 days of the month.

5845
07:33:13,440 --> 07:33:15,660
Well, this wasn't one of the first 10 days of the month.

5846
07:33:15,660 --> 07:33:18,500
So I had no neurosurgery call person.

5847
07:33:19,520 --> 07:33:26,520
I then called the hospital down the street with his competing hospital because they pay a neurosurgeon take call for them.

5848
07:33:27,220 --> 07:33:30,120
I found out that unfortunately he was away at a medical convention.

5849
07:33:30,640 --> 07:33:32,780
So they had no coverage at that hospital.

5850
07:33:33,660 --> 07:33:39,340
I knew I couldn't call one of the hospital in the south part of the city because they lost neurosurgery coverage 10 years ago.

5851
07:33:40,280 --> 07:33:45,180
I tried to get the patient in the university hospital system in San Antonio, but they were only taking trauma.

5852
07:33:47,820 --> 07:33:50,560
This patient, unfortunately, did not have neurosurgical trauma.

5853
07:33:50,760 --> 07:33:52,420
He had a spontaneous brain hemorrhage.

5854
07:33:53,220 --> 07:33:57,440
He was suffering from cerebral edema, which is brain hemorrhage, which is, boom!

5855
07:33:57,780 --> 07:34:01,420
The brain hemorrhage was creating pressure on the brain, pushing the brain down the foremen,

5856
07:34:01,540 --> 07:34:05,700
magnum, which is the opening at the bottom of the brain, which will ultimately cause you to die

5857
07:34:05,700 --> 07:34:07,460
if you get enough herniation of your brain stone.

5858
07:34:08,180 --> 07:34:13,700
I then called one of the physicians who used to be taking call but who dropped his call

5859
07:34:14,380 --> 07:34:20,400
from neurosurgery and of course I got a rather frosty reception from this gentleman because

5860
07:34:20,400 --> 07:34:23,720
the first question is why in the hell are you calling me, I'm not in call.

5861
07:34:25,020 --> 07:34:29,520
And I explained my situation, I was having a real problem getting a neurosurgeon to

5862
07:34:29,520 --> 07:34:34,120
take care of this particular patient and he explained to me, he said, well that's

5863
07:34:34,120 --> 07:34:39,540
problem, I'm not going to take emergency apartment call. I'm not going to pay $45,000 a year

5864
07:34:39,540 --> 07:34:46,200
for the privilege of taking emergency apartment call. Mainly you guys, me, emergency physicians

5865
07:34:46,200 --> 07:34:50,680
call at two and three o'clock in the morning with some type of neurosurgical disaster and

5866
07:34:50,680 --> 07:34:55,260
I have enormous medical legal liability exposure. I'm not going to do that. I'm not going

5867
07:34:55,260 --> 07:34:59,500
to help you out. We'll make a long story a little bit shorter. I finally was able

5868
07:34:59,500 --> 07:35:04,380
after five hours of telephone calls I got a neurosurgeon in another hospital take this patient.

5869
07:35:05,300 --> 07:35:09,700
The problem was I had no ability to compel anyone to take care of this patient.

5870
07:35:10,200 --> 07:35:14,040
I literally was begging a doctor to take care of this patient and we transferred him over to

5871
07:35:14,040 --> 07:35:19,840
another hospital but I was good luck because there's still one hospital system in San Antonio

5872
07:35:19,840 --> 07:35:26,300
which does have neurosurgery call every day of the year. They had no obligation to respond

5873
07:35:26,300 --> 07:35:30,300
to me because my patient was in part of their hospital system but nevertheless I

5874
07:35:30,300 --> 07:35:34,080
was able to get the patient transferred but nevertheless for five hours I was in

5875
07:35:34,080 --> 07:35:38,040
the emergency apartment with a patient whose family was questioning why aren't

5876
07:35:38,040 --> 07:35:42,000
you getting a neurosurgeon take care of my father and my husband it was a

5877
07:35:42,000 --> 07:35:45,480
disaster and I didn't have any good explanation other than the fact I was

5878
07:35:45,480 --> 07:35:49,680
trying desperately to get them some care but this just reflects the access

5879
07:35:49,680 --> 07:35:52,660
problem I've heard a lot of people talking about access people want

5880
07:35:52,660 --> 07:35:56,440
access to unlimited abilities to recover for non-academic damages.

5881
07:35:57,340 --> 07:36:00,220
I'm telling you, if we don't get some kind of relief from the medical liability crisis,

5882
07:36:00,740 --> 07:36:02,720
we're going to have a real access to care problem.

5883
07:36:04,920 --> 07:36:08,300
And I know I don't need my relatives, and I don't think any one of you

5884
07:36:08,300 --> 07:36:12,760
want to have any of your relatives have a real medical emergency and have nobody on call,

5885
07:36:12,920 --> 07:36:17,540
and especially that you need, because they cannot afford to pay the now practice premium

5886
07:36:17,540 --> 07:36:20,840
increase that they have to pay in order to cover the emergency department.

5887
07:36:21,260 --> 07:36:23,080
It's just that simple.

5888
07:36:23,200 --> 07:36:24,460
We're going to have a real access problem.

5889
07:36:25,180 --> 07:36:26,340
I can do the best I can.

5890
07:36:26,660 --> 07:36:30,640
I can stabilize the patient to the extent that I can using medical new reason

5891
07:36:30,640 --> 07:36:33,340
and putting the patient on a ventilator in the emergency department.

5892
07:36:33,500 --> 07:36:34,400
But I don't do brain surgery.

5893
07:36:34,580 --> 07:36:36,140
I can't drain the blood from his brain.

5894
07:36:36,860 --> 07:36:39,880
And this patient was not getting better during those five hours

5895
07:36:39,880 --> 07:36:43,820
that we were killing time trying to get the neurosurgeon to cover this patient.

5896
07:36:44,280 --> 07:36:47,880
So I just want to agree on the fact that I thank you for addressing this issue.

5897
07:36:48,020 --> 07:36:48,860
We're looking into this issue.

5898
07:36:48,860 --> 07:36:54,660
I'm just saying, the bills we have before us may not be perfect, but I don't think we're

5899
07:36:54,660 --> 07:36:59,180
ever going to achieve perfection, but we've got to have something done to relieve this

5900
07:36:59,680 --> 07:37:03,720
crisis that we have, because next I'm going to lose orthopedic surgery, and I hate you

5901
07:37:03,720 --> 07:37:06,060
and think what's going to happen if I leave the cardiovascular surgeons.

5902
07:37:06,620 --> 07:37:09,680
I'm going to have nobody to provide the care that's needed by our patients.

5903
07:37:10,260 --> 07:37:10,700
Thank you.

5904
07:37:10,840 --> 07:37:10,860
Thank you, doctor.

5905
07:37:12,040 --> 07:37:12,660
Yes, please.

5906
07:37:13,200 --> 07:37:13,760
Thank you, Mr. Chairman.

5907
07:37:15,040 --> 07:37:16,020
You're much here, Dr.

5908
07:37:16,240 --> 07:37:16,480
Yes.

5909
07:37:17,220 --> 07:37:21,560
This still gives, relate to emergency room doctors that it does not give to any other

5910
07:37:21,560 --> 07:37:23,440
doctor, and that is that we change standard of proof.

5911
07:37:23,560 --> 07:37:23,920
That's correct.

5912
07:37:24,160 --> 07:37:29,100
From performance evidence to clear and convincing evidence.

5913
07:37:30,880 --> 07:37:35,260
Why is it that we should create a separate class for emergency room doctors from all

5914
07:37:35,260 --> 07:37:35,500
of us?

5915
07:37:35,660 --> 07:37:36,620
That's a very good question.

5916
07:37:36,880 --> 07:37:40,800
And I did not ask for any special consideration, but there are some unique things about

5917
07:37:40,800 --> 07:37:41,500
emergency medicine.

5918
07:37:41,980 --> 07:37:47,260
And emergency physicians are unique in that we are the one specialty that falls under the

5919
07:37:47,260 --> 07:37:53,000
Federal MTAW Act, Emergency Medical Treatment Active Labor Act 1986, which means we cannot

5920
07:37:53,000 --> 07:37:54,940
turn anyone away for any reason or whatever.

5921
07:37:55,860 --> 07:37:56,800
Anybody else can.

5922
07:37:56,980 --> 07:38:00,600
If you're a doctor and say E&T, you can choose your patients, but I can't.

5923
07:38:01,720 --> 07:38:07,140
I am frequently in a situation where the patients I see are brought in by EMS or found

5924
07:38:07,140 --> 07:38:07,580
in the street.

5925
07:38:07,720 --> 07:38:08,720
We have no identifications.

5926
07:38:08,980 --> 07:38:10,040
I have no medical records.

5927
07:38:10,220 --> 07:38:10,980
I have no family.

5928
07:38:10,980 --> 07:38:17,260
or anybody can contact, the patient may have a disastrous medical condition, but it certainly

5929
07:38:17,260 --> 07:38:21,780
is, our excision is going to be quite reliable for the hospital, for me and everybody else,

5930
07:38:22,120 --> 07:38:23,240
but I take care of them.

5931
07:38:23,900 --> 07:38:28,180
The other thing that's unique about our specialty, I think, is that we face a terrific

5932
07:38:28,180 --> 07:38:29,120
economic crunch.

5933
07:38:29,300 --> 07:38:34,800
I know we're not here to talk about economics, but I use a 25 percent, well partly, 25

5934
07:38:34,800 --> 07:38:38,680
percent of my patients are in the private pay category, which means they pay nothing.

5935
07:38:39,580 --> 07:38:44,680
And that's just the way it is. 25% of Medicaid, I get paid a very minimal amount from those.

5936
07:38:44,840 --> 07:38:49,820
25% of Medicare and 25% are HMOs. But I have no choice about who I serve.

5937
07:38:49,960 --> 07:38:53,860
I serve anybody who comes to the door, no matter how they're brought there frequently.

5938
07:38:54,500 --> 07:38:56,860
They're dropped off by somebody out in the back of a pickup truck

5939
07:38:56,860 --> 07:39:00,580
and they don't go to the door of the emergency department and we get them.

5940
07:39:00,920 --> 07:39:04,540
So we don't have the luxury of past medical records or getting history.

5941
07:39:04,540 --> 07:39:09,280
we have to make split-second decisions which deal with that life and death and we just started

5942
07:39:09,280 --> 07:39:13,240
we're just not a normal greeted cat basically emergency medicines are not like any other

5943
07:39:13,240 --> 07:39:20,280
specialty. However when jury judges your conduct they do compare it not to other GPs but to

5944
07:39:20,280 --> 07:39:24,440
other emergency room doctors. Well that would be nice if we were always judgmental on that

5945
07:39:24,440 --> 07:39:28,620
kind of criteria but unfortunately there have been cases where doctors emergency

5946
07:39:28,620 --> 07:39:33,840
physicians were tested for the expert testimony came from someone who is not board certified

5947
07:39:33,840 --> 07:39:36,740
Thank you very much.

5948
07:39:39,640 --> 07:39:39,780
Thank you.

5949
07:39:40,280 --> 07:39:40,880
Thank you, doctor.

5950
07:39:41,200 --> 07:39:48,140
Chair, I want to recognize as Pamela Johnson against the bill and against the H. J. R.

5951
07:39:48,760 --> 07:39:49,200
Miss Johnson.

5952
07:39:51,250 --> 07:39:55,990
OK, that's a I think we had another Johnson also.

5953
07:39:55,990 --> 07:39:56,750
So the

5954
07:40:06,320 --> 07:40:17,480
chair recognizes Ms. Sprinkle, I don't know if it's a individual, G.K.

5955
07:40:17,720 --> 07:40:26,380
Sprinkle, oh, Ms. Sprinkle, yes, who is going to testify neutrally in relation to both the

5956
07:40:26,380 --> 07:40:28,560
bill and the H.J.R.

5957
07:40:29,080 --> 07:40:29,540
Parise.

5958
07:40:29,920 --> 07:40:35,060
Thank you, Chairman Nixon, and thank you for listening to me, members of the House.

5959
07:40:35,060 --> 07:40:36,480
My name is G. K. Sprinkel.

5960
07:40:36,880 --> 07:40:38,980
I work for the Texas Ambulance Association.

5961
07:40:40,680 --> 07:40:45,880
We really like the idea of addressing the medical liability issue.

5962
07:40:46,560 --> 07:40:52,440
And we like the fact that you are discussing emergency medicine within the bill.

5963
07:40:52,980 --> 07:40:58,440
Unfortunately, ambulance providers and EMS personnel are not covered under this bill

5964
07:40:58,440 --> 07:41:03,620
because we're not within the definition of a healthcare provider.

5965
07:41:03,620 --> 07:41:10,520
And I came before you because we would really like to support the bill and we would like to be in the bill.

5966
07:41:11,280 --> 07:41:16,880
Now governmental entities are covered under the Civil Practices and Remedies Act,

5967
07:41:17,380 --> 07:41:25,140
so we would like to make sure that when you put EMS into the bill that that does not affect their coverage

5968
07:41:25,140 --> 07:41:29,360
because it's of a different level than the one that you have in the bill for medical doctors.

5969
07:41:29,360 --> 07:41:34,760
When the emergency medical physician spoke, he said that they were not allowed to refuse

5970
07:41:34,760 --> 07:41:37,140
anybody that came to the door of an emergency room.

5971
07:41:37,780 --> 07:41:40,740
Ambulances cannot refuse to take anybody either.

5972
07:41:41,320 --> 07:41:46,300
Private ambulances that have arrangements with cities to be allowed to work within

5973
07:41:46,300 --> 07:41:51,180
those cities have to sign that they will not refuse to take somebody in the ambulance,

5974
07:41:51,320 --> 07:41:53,280
whether they are Medicaid or Medicare.

5975
07:41:53,280 --> 07:41:59,900
care. And furthermore, the Imaging Health Care Act does allow counties to pay for transportation

5976
07:41:59,900 --> 07:42:06,560
services and ambulances does not require it. And so most ambulances are not covered if

5977
07:42:06,560 --> 07:42:11,160
they take someone who is indigent to an emergency room. So for this reason, we would like to

5978
07:42:11,160 --> 07:42:14,520
ask a place to be included in this definition in your bill.

5979
07:42:15,460 --> 07:42:18,620
Thank you, Ms. Brickle. Thank you for listening to me.

5980
07:42:18,620 --> 07:42:28,800
Chair recognizes Ms. Webber, Cynthia Gore-Weber against the bill and, oh, Cynthia Garza-Weber

5981
07:42:28,800 --> 07:42:31,420
against the bill and against the HDR3.

5982
07:42:31,820 --> 07:42:32,100
Ms.

5983
07:42:41,790 --> 07:42:44,270
Cynthia Garza-Weber, we're from Corpus Christi, Texas.

5984
07:42:44,930 --> 07:42:48,030
We come to address the issue of non-economic damages.

5985
07:42:49,010 --> 07:42:54,830
My husband and I come to you tonight with a heavy heart on behalf of our son and our

5986
07:42:54,830 --> 07:42:55,190
daughters.

5987
07:42:55,190 --> 07:43:00,450
He died due to medical negligence, and when he passed away, a part of us died too.

5988
07:43:01,450 --> 07:43:04,990
This is our beloved son, Kevin Thomas Weber.

5989
07:43:05,570 --> 07:43:09,350
He was a junior in college attending Texas A&M Corpus Christi.

5990
07:43:10,010 --> 07:43:11,430
His major was political science.

5991
07:43:12,050 --> 07:43:15,430
He was very active in ROTC, both in high school and in college.

5992
07:43:16,110 --> 07:43:22,110
His dream was to be a military officer in the JAG Corps, but that was cut short due to medical negligence

5993
07:43:22,110 --> 07:43:24,370
has sudden tragic death at the age of 21.

5994
07:43:25,450 --> 07:43:29,770
Almost five years ago, Kevin went underwent surgery to replace an aorta valve.

5995
07:43:30,350 --> 07:43:33,190
This is recommended by his cardiovascular surgeon.

5996
07:43:33,770 --> 07:43:37,950
The surgeon indicated that Kevin's risk for surgery was only 1 to 2 percent.

5997
07:43:38,950 --> 07:43:43,030
He even assured us that since Kevin was so young, strong, and otherwise healthy, he'd

5998
07:43:43,030 --> 07:43:44,910
be driving in two weeks after the surgery.

5999
07:43:45,870 --> 07:43:50,210
Unfortunately, three days after Kevin's release from the hospital, he became very

6000
07:43:50,210 --> 07:43:50,530
ill.

6001
07:43:50,530 --> 07:43:56,870
In the middle of the night, we took him to the ER, and we rushed him quickly on a Saturday

6002
07:43:56,870 --> 07:43:57,290
morning.

6003
07:43:58,230 --> 07:44:04,990
However, the cardiologist on duty misdiagnosed the severity of his heart condition and he

6004
07:44:04,990 --> 07:44:06,150
failed to act promptly.

6005
07:44:06,950 --> 07:44:11,030
The echocardiogram showed that accumulation of fluid had built up in the heart sac.

6006
07:44:11,530 --> 07:44:16,410
He told us that the fluid would be best drained on Monday, but unfortunately our

6007
07:44:16,410 --> 07:44:18,550
son's condition worsened over the weekend.

6008
07:44:18,550 --> 07:44:23,650
He was in the acute coronary unit there at a hospital in Corpus Christi.

6009
07:44:24,470 --> 07:44:30,810
The amount of fluid over the weekend had increased substantially and by Sunday afternoon our son

6010
07:44:30,810 --> 07:44:32,450
could hold it no more.

6011
07:44:33,010 --> 07:44:37,270
It was very agonizing for us as parents to watch him in such pain.

6012
07:44:38,010 --> 07:44:41,430
He had a hard time breathing and gasping for air.

6013
07:44:41,990 --> 07:44:46,250
We felt so powerless and so hopeless as we were yelling for the doctors to hurry up

6014
07:44:46,250 --> 07:44:52,630
to him. Unfortunately though by the time they got to the emergency surgery that Sunday evening

6015
07:44:52,630 --> 07:44:57,970
right before they drained the fluid our son had a cardiac arrest on the operating table

6016
07:44:58,450 --> 07:44:59,970
and because the fluid was still

6017
07:45:00,000 --> 07:45:06,520
In the heart sack, the CPR efforts to revive him were ineffective. Our son was left with severe

6018
07:45:06,520 --> 07:45:15,740
brain damage. He was laid comatose for four days, and he died on June 18, 1998. I'm sorry.

6019
07:45:16,760 --> 07:45:22,740
Yes, we settled a wrongful death lawsuit that was our only recourse. For those doctors who

6020
07:45:22,740 --> 07:45:25,740
were grossly negligent and caring for our son that weekend,

6021
07:45:28,180 --> 07:45:29,520
I grant you this is not,

6022
07:45:29,520 --> 07:45:34,440
of course, the frivolous lawsuit. It has great merit. And I know you've heard from other doctors

6023
07:45:34,440 --> 07:45:38,200
here from Corpus Christi and I wish Mr. Capello were here to hear our side of the story.

6024
07:45:39,140 --> 07:45:43,360
However, that weekend it seems like Kevin was just passed on from one doctor to the

6025
07:45:43,360 --> 07:45:48,060
next. Run this test, run that test, all waited until Monday when the fluid would

6026
07:45:48,060 --> 07:45:53,000
be drained. However, these doctors failed to communicate in a professional manner

6027
07:45:53,000 --> 07:45:58,760
to see what his test results were or to find out, monitoring his progress. They

6028
07:45:58,760 --> 07:46:06,240
fell to communicate. In the meantime, we lost our sons, and he was our only son. We trusted

6029
07:46:06,240 --> 07:46:10,820
these doctors. We entrusted them with the life of our child. We trusted him, and so did

6030
07:46:10,820 --> 07:46:14,580
our son. We kept reassuring him, everything's going to be fine, honey. Just hold on, just

6031
07:46:14,580 --> 07:46:21,700
hold on. My God, we feel so guilty about that. But anyway, we ask, I mean, we've

6032
07:46:21,700 --> 07:46:27,820
suffered the ultimate nightmare for a parent, the loss of a child. It's just unbearable.

6033
07:46:27,820 --> 07:46:31,500
It's changed our lives dramatically, our lives will never be the same.

6034
07:46:31,600 --> 07:46:34,100
We can't even celebrate holidays the way we used to.

6035
07:46:34,600 --> 07:46:38,340
The first two years we had to go out of state, out of town, we couldn't bear the thought

6036
07:46:38,340 --> 07:46:39,980
of spending the holidays without him.

6037
07:46:40,540 --> 07:46:45,820
It's just been a terrible experience and my God, I'm asking that you please not put

6038
07:46:45,820 --> 07:46:47,860
a cap on this House Bill 3.

6039
07:46:48,620 --> 07:46:53,540
A cap of only $250,000, my God, we wouldn't have been able to have any legal representation

6040
07:46:53,540 --> 07:46:54,280
with that.

6041
07:46:55,240 --> 07:47:00,960
It makes it just too difficult for the doctors to have accountability or responsibility for

6042
07:47:00,960 --> 07:47:03,140
their reckless negligent actions.

6043
07:47:03,720 --> 07:47:10,370
I hope that you will reconsider this and think it through very carefully.

6044
07:47:10,790 --> 07:47:16,130
We know and we acknowledge there does need to be reformed, but I hope you'll know that

6045
07:47:16,130 --> 07:47:20,330
the patients of Texas, including your loved ones, do deserve protection.

6046
07:47:20,830 --> 07:47:21,230
Thank you.

6047
07:47:23,500 --> 07:47:24,340
Thank you very much.

6048
07:47:24,340 --> 07:47:24,960
Kelly

6049
07:47:27,840 --> 07:47:36,720
recognizes Susie Woodford, who is indicated, Ms. Woodford here.

6050
07:47:40,090 --> 07:47:48,950
Ms. Woodford has indicated that she's neutral on HB3, but she is against HJR3.

6051
07:47:48,950 --> 07:47:49,730
I

6052
07:48:05,640 --> 07:48:07,020
recognize is Kelly Wright,

6053
07:48:10,980 --> 07:48:14,040
who is

6054
07:48:20,630 --> 07:48:25,170
against HB3 and HJR3.

6055
07:48:25,590 --> 07:48:26,670
Thank you.

6056
07:48:26,930 --> 07:48:36,650
Mr. Chairman, my name is Larry Wright and I live in Bastrop County near Elgin, where

6057
07:48:36,650 --> 07:48:39,690
I represent myself and my family.

6058
07:48:41,210 --> 07:48:47,000
I appreciate you all waiting this late to listen to us and I'll try to be as brief as

6059
07:48:47,000 --> 07:48:47,300
I can.

6060
07:48:47,580 --> 07:48:49,480
I appreciate you're staying with us this long.

6061
07:48:49,680 --> 07:48:49,960
Thank you.

6062
07:48:50,140 --> 07:48:51,520
Your testimony is important to us.

6063
07:48:51,640 --> 07:48:55,600
I'll try to make, there are a lot of things about this bill that I'd like to talk about.

6064
07:48:56,580 --> 07:49:01,240
I'll limit it to one or two of the items that I think are the most important.

6065
07:49:01,560 --> 07:49:01,920
Thank you.

6066
07:49:05,880 --> 07:49:08,980
I'm a little bit emotional because I've been sitting back there all night long

6067
07:49:08,980 --> 07:49:15,520
And I've been looking at these two flags and I'm

6068
07:49:21,630 --> 07:49:22,050
an American.

6069
07:49:22,710 --> 07:49:28,070
We're all Americans here, doctors, lawyers, representatives.

6070
07:49:28,690 --> 07:49:32,370
We all live under the same flag and we all live under the same Constitution.

6071
07:49:33,510 --> 07:49:34,510
I'm an attorney.

6072
07:49:34,510 --> 07:49:45,390
County. I also raised a beef master cattle in Bastrop County and five daughters. You've

6073
07:49:45,390 --> 07:49:50,830
heard a lot of people have five children. I'm one of them. I've got five daughters. And

6074
07:49:51,250 --> 07:49:59,070
I was raised a Republican. My father to this day believes that Richard Nixon was the best

6075
07:49:59,070 --> 07:50:01,450
president that this country has had since Abraham Lincoln.

6076
07:50:03,410 --> 07:50:06,830
And when I tell him, when I tell him,

6077
07:50:09,320 --> 07:50:17,270
Daddy, they want to cap damages that are intended

6078
07:50:17,270 --> 07:50:21,930
to compensate people for what they've lost at somebody else's hands.

6079
07:50:23,880 --> 07:50:30,360
They're going to cap those at $250,000, and I thought we had a constitutional right to

6080
07:50:30,360 --> 07:50:30,900
a jury trial.

6081
07:50:30,900 --> 07:50:31,720
Well, daddy, we do.

6082
07:50:33,080 --> 07:50:36,100
And for 200 years in this country,

6083
07:50:36,220 --> 07:50:39,460
juries have been authorized to set

6084
07:50:39,460 --> 07:50:44,720
the award of damages to compensate you for what you've lost.

6085
07:50:45,640 --> 07:50:47,360
You're not giving these people anything.

6086
07:50:47,700 --> 07:50:48,740
You're not giving those families.

6087
07:50:49,380 --> 07:50:51,660
The juries aren't giving them a lot of winning.

6088
07:50:52,460 --> 07:50:56,280
The jury is trying to replace what somebody took from them,

6089
07:50:57,460 --> 07:50:59,740
whether it's their peace of mind, their fertility,

6090
07:50:59,740 --> 07:51:07,120
authority, their body, their ability to walk, the jury's job, and what they're instructed

6091
07:51:07,120 --> 07:51:13,920
by the judges in this state to do is to replace what will it take to compensate them to replace

6092
07:51:13,920 --> 07:51:14,560
what they've lost.

6093
07:51:14,780 --> 07:51:15,700
Everybody agrees that.

6094
07:51:15,760 --> 07:51:21,060
I think my recollection is everybody on the committee has agreed with the principal

6095
07:51:21,640 --> 07:51:27,760
that juries are allowed and authorized to compensate people for what they've lost.

6096
07:51:27,760 --> 07:51:35,780
And what we're saying, as a committee it seems, is we're saying that for public policy reasons,

6097
07:51:37,320 --> 07:51:46,360
as a matter of public policy, we have to take the part of the award, the part of the compensation

6098
07:51:46,360 --> 07:51:54,420
that you're entitled to, we have to take that part of the award and spread it to the

6099
07:51:54,420 --> 07:52:06,660
of society for social purposes. And my daddy says, oh my God, that's socialism. That's socialism.

6100
07:52:06,940 --> 07:52:12,240
You're taking somebody else's property. You're taking what the jury says is their property.

6101
07:52:13,540 --> 07:52:18,780
It's not a lot of winning. It's their property to compensate them for what somebody else took

6102
07:52:18,780 --> 07:52:24,580
from them. And you're saying we know it's tragic. We know your loss is great.

6103
07:52:24,580 --> 07:52:32,820
We know the jury has a value due to loss, but we're going to have to take that, everything

6104
07:52:32,820 --> 07:52:37,380
over $250,000 and distribute it to society for the good of society.

6105
07:52:37,920 --> 07:52:39,120
Second point, please.

6106
07:52:40,700 --> 07:52:41,620
It's not fair.

6107
07:52:42,580 --> 07:52:46,420
If a doctor is paralyzed by a drunk driver,

6108
07:52:48,550 --> 07:52:50,230
the doctor gets full compensation.

6109
07:52:50,590 --> 07:52:52,270
And I have represented doctors.

6110
07:52:52,270 --> 07:52:58,230
I represented a doctor whose mother was run over by a coke truck, and he wanted every

6111
07:52:58,230 --> 07:53:00,470
dime that he was entitled to.

6112
07:53:03,540 --> 07:53:08,030
And he was an American citizen, he was entitled to have a jury determine what he had lost.

6113
07:53:08,610 --> 07:53:09,830
And I told him that.

6114
07:53:11,410 --> 07:53:19,010
Now I've got to tell the truck driver's mother, who's paralyzed because a drunk doctor

6115
07:53:20,310 --> 07:53:21,250
paralyzed her.

6116
07:53:21,250 --> 07:53:26,790
I've got to tell her, well, you're an American citizen too, and I know the jury said that

6117
07:53:27,140 --> 07:53:34,490
your paralyzation is worth $2 million, but that other million $750,000, we've got to

6118
07:53:34,490 --> 07:53:40,480
give it to society to try to increase the number of doctors.

6119
07:53:41,440 --> 07:53:44,920
Last point, doctors need relief.

6120
07:53:44,920 --> 07:53:54,060
I agree. But don't give the doctors relief by taking the rights of these American citizens.

6121
07:53:54,680 --> 07:54:01,200
Please. Let's do it a different way. Make frivolous lawsuits illegal. Let's make it a criminal

6122
07:54:01,200 --> 07:54:07,420
offense to file a frivolous lawsuit. And let's double the penalty if you file a frivolous lawsuit

6123
07:54:07,420 --> 07:54:13,740
against the doctor. But let's agree on what a frivolous lawsuit is. Let's agree on a

6124
07:54:13,740 --> 07:54:21,560
fair definition of what a frivolous lawsuit is, let's let the jury that we trust to make

6125
07:54:21,560 --> 07:54:27,800
life or death decisions, the same folks that elect our representatives, let's let those

6126
07:54:27,800 --> 07:54:32,480
folks decide if that lawsuit is frivolous. And if it is, let's make it a crime. Let's

6127
07:54:32,480 --> 07:54:37,560
penalize the lawyer. Let's make him pay the fees. Let's make him pay a fine. Let's

6128
07:54:37,560 --> 07:54:39,100
making go to ethics classes.

6129
07:54:42,160 --> 07:54:44,160
But don't take away these folks' rights

6130
07:54:45,720 --> 07:54:47,860
because people are filing frivolous lawsuits.

6131
07:54:48,040 --> 07:54:48,700
Thank you very much.

6132
07:54:49,200 --> 07:54:50,480
Thank you very much, Mr. Rowan.

6133
07:54:59,120 --> 07:55:02,520
The chair recognizes Anita Zamora

6134
07:55:02,520 --> 07:55:07,880
against HAR3 and against HB3.

6135
07:55:23,440 --> 07:55:26,220
Mr. Chairman, committee members,

6136
07:55:26,880 --> 07:55:28,220
my name is Anita Zamora

6137
07:55:28,220 --> 07:55:36,100
and against the cap 250 bill in

6138
07:55:38,150 --> 07:55:44,550
1995 I mean I'm here on behalf of myself in 1995

6139
07:55:44,550 --> 07:55:53,010
I went to a doctor and was told that to follow up on a lump that I had on my left

6140
07:55:53,010 --> 07:55:59,050
breast at that visit the doctor which was a breast specialist told me that I

6141
07:55:59,590 --> 07:56:05,130
I didn't have cancer and didn't perform any mammograms or biopsies.

6142
07:56:08,640 --> 07:56:12,300
For two years, they treated me for fibrocystic changes.

6143
07:56:12,660 --> 07:56:18,720
She had written to my primary doctor and told him that what I had was fibrocystic changes

6144
07:56:19,440 --> 07:56:21,280
and that it was not cancer.

6145
07:56:21,540 --> 07:56:24,240
So when I heard that I didn't have cancer, I just thanked God.

6146
07:56:25,180 --> 07:56:27,140
I walked out of that office with a big smile.

6147
07:56:28,280 --> 07:56:35,100
To come to find out that two years later, the pain still persisted, the lump was still there

6148
07:56:35,100 --> 07:56:38,300
and the pain was getting worse and it was going to my left arm.

6149
07:56:39,680 --> 07:56:46,080
I went to another doctor because I worked for Travis County Adult Probation with changing

6150
07:56:46,080 --> 07:56:48,720
insurance so I was having to go to another doctor.

6151
07:56:49,400 --> 07:56:54,280
I found out at the second doctor that he got real concerned.

6152
07:56:54,280 --> 07:57:03,680
He immediately ordered mammograms, ultrasounds, biopsies and sent me to another breast specialist

6153
07:57:03,680 --> 07:57:05,460
all in the same week.

6154
07:57:07,680 --> 07:57:14,340
I found out through the second breast specialist that the doctor had sent me to that I had advanced

6155
07:57:14,900 --> 07:57:19,720
lobular carcinoma cancer that had been there since 1995.

6156
07:57:23,510 --> 07:57:25,310
The doctor ordered treatment.

6157
07:57:25,310 --> 07:57:32,970
I went through four series of chemotherapy, two surgeries, one reconstruction which it

6158
07:57:32,970 --> 07:57:33,490
didn't take.

6159
07:57:33,690 --> 07:57:38,430
They had to put me back in the hospital, take it out and close me up.

6160
07:57:42,090 --> 07:57:47,050
I had eight weeks every day of radiation after the surgery.

6161
07:57:48,270 --> 07:57:53,530
I was going to radiation during my lunch breaks and still working.

6162
07:57:57,400 --> 07:57:59,040
I didn't know what had happened.

6163
07:57:59,040 --> 07:57:59,880
And I

6164
07:58:02,380 --> 07:58:03,860
wanted to answer, speak

6165
07:58:08,530 --> 07:58:13,750
to court, and through the proceeds of the trial, I found

6166
07:58:13,750 --> 07:58:25,980
out that had that doctor diagnosed the cancer at 1995, my survival would have been 95 percent

6167
07:58:27,730 --> 07:58:29,550
to the 30 percent that I have now.

6168
07:58:30,590 --> 07:58:34,910
I live every day with a fear that the cancer is going to come back.

6169
07:58:34,910 --> 07:58:42,760
I'm currently on a five year medication to prevent any cancer cells that might have been

6170
07:58:42,760 --> 07:58:45,180
left behind and might still be growing there.

6171
07:58:46,120 --> 07:58:50,020
They tell my oncologist tells me that I'm on high risk for reoccurrence.

6172
07:58:51,380 --> 07:58:54,560
Every time there's pain in my body, I think, is it cancer?

6173
07:58:55,180 --> 07:58:56,340
Has the cancer come back?

6174
07:58:58,470 --> 07:59:07,040
What was taken away from me was life, but not only life was taken from me, it was

6175
07:59:07,040 --> 07:59:09,100
a lot more was taken from me.

6176
07:59:09,100 --> 07:59:14,280
I can't make plans with my children or my grandchildren.

6177
07:59:15,540 --> 07:59:20,840
My granddaughter asked me, Grandma, don't worry, she tells me, Grandma, don't worry.

6178
07:59:21,640 --> 07:59:24,860
I'm praying and I'm praying really hard.

6179
07:59:25,700 --> 07:59:27,260
You always won't come back.

6180
07:59:28,240 --> 07:59:30,700
So these are the kind of things that I have to live with.

6181
07:59:30,860 --> 07:59:36,100
I get up in the morning and I look at myself and I see myself with a disfigurement.

6182
07:59:36,100 --> 07:59:37,920
And I mean, I don't feel like a woman sometimes.

6183
07:59:39,460 --> 07:59:40,340
It's just hard.

6184
07:59:41,720 --> 07:59:45,380
I don't know if I ever be the same again.

6185
07:59:45,940 --> 07:59:47,220
I know I won't.

6186
07:59:48,100 --> 07:59:51,040
We tried that the the my attorney tried

6187
07:59:51,040 --> 07:59:53,420
to settle with the doctor's insurance company

6188
07:59:53,420 --> 07:59:55,140
and not have to take it to court.

6189
07:59:56,280 --> 07:59:57,760
And they wouldn't settle.

6190
07:59:58,800 --> 07:59:59,980
We've been about it.

6191
08:00:00,000 --> 08:00:05,360
$80,000 in expenses before even went to trial. During the trial,

6192
08:00:07,420 --> 08:00:11,020
the doctor's attorney didn't

6193
08:00:11,020 --> 08:00:18,160
even put any witnesses on the stand. The doctor didn't even go on the stand, and that's how

6194
08:00:18,160 --> 08:00:27,560
the case closed. I don't think that I could have lived knowing that a mistake like that

6195
08:00:27,560 --> 08:00:33,540
would have been made by my something that I would have done for myself that I had I had to have the

6196
08:00:33,540 --> 08:00:42,080
answers and I found out that that it wasn't me this doctor made a mistake and with mistakes

6197
08:00:42,940 --> 08:00:48,440
in our everyday life comes accountability and responsibility I work in a substance abuse

6198
08:00:48,440 --> 08:00:57,320
treatment facility we have 76 residents and we teach them about responsibility and accountability

6199
08:00:57,560 --> 08:00:58,900
for their actions.

6200
08:00:59,320 --> 08:00:59,620
I

6201
08:01:02,790 --> 08:01:12,070
just want to ask the committee members that $250 to raise a slap in the face.

6202
08:01:12,470 --> 08:01:14,770
That's an insult to people like myself.

6203
08:01:15,990 --> 08:01:18,070
I'm a widow, 57 years old.

6204
08:01:20,990 --> 08:01:24,670
If I get sick again, which is the risk, they're very high.

6205
08:01:27,280 --> 08:01:32,460
It will never, never amount to what I have already lost.

6206
08:01:33,800 --> 08:01:35,000
Thank you and God bless.

6207
08:01:35,720 --> 08:01:36,340
God bless you.

6208
08:01:40,840 --> 08:01:48,420
Chair recognizes Richard Gray to speak against HB3 and HJR3.

6209
08:01:59,780 --> 08:02:00,260
Mr. Nixon?

6210
08:02:00,820 --> 08:02:02,620
Mr. Gray, can you tell us your name?

6211
08:02:02,900 --> 08:02:04,020
My name is Richard Gray.

6212
08:02:05,580 --> 08:02:07,020
I live in Toronto, Texas.

6213
08:02:07,600 --> 08:02:08,840
Are you here on behalf of yourself?

6214
08:02:10,060 --> 08:02:12,320
Well, I love what I've got besides my grandchildren.

6215
08:02:13,320 --> 08:02:13,860
That's so good.

6216
08:02:13,860 --> 08:02:18,820
This time last week, I didn't exist.

6217
08:02:20,940 --> 08:02:22,540
I'm the other side of this issue.

6218
08:02:24,930 --> 08:02:26,570
I'm not going to tell you another story

6219
08:02:26,570 --> 08:02:27,770
about a medical travesty.

6220
08:02:27,990 --> 08:02:31,030
Suffice to say, I'm a victim of such a travesty.

6221
08:02:31,750 --> 08:02:32,610
Look at my shoulder.

6222
08:02:34,270 --> 08:02:35,210
There's no bone there.

6223
08:02:37,480 --> 08:02:39,100
Still, I'll concentrate my remarks on

6224
08:02:39,100 --> 08:02:41,420
what I perceive to be the problem before you

6225
08:02:42,040 --> 08:02:43,220
and a possible solution.

6226
08:02:44,120 --> 08:02:45,880
Texas does face a medical crisis.

6227
08:02:46,660 --> 08:02:48,000
It faces an insurance crisis.

6228
08:02:49,220 --> 08:02:56,780
The medical profession and the insurance industry has stood before you today and cried wrongly

6229
08:02:56,780 --> 08:03:04,720
and loudly about juries who want to muck and giving away enormous awards, making instant

6230
08:03:04,720 --> 08:03:05,360
millionaires.

6231
08:03:07,350 --> 08:03:09,810
Such proclamation is running as loud as a holla tree.

6232
08:03:11,470 --> 08:03:12,450
I'll warn that later.

6233
08:03:12,450 --> 08:03:20,070
here. The medical profession tolerates and encourages incompetent and just plain bad doctors.

6234
08:03:21,450 --> 08:03:26,710
My doctor, after he infected me, and this was a placed infection,

6235
08:03:28,830 --> 08:03:29,810
operated on me three

6236
08:03:29,810 --> 08:03:36,850
times, threw up his hands and walked away. I was sent to Houston, where I am a minor

6237
08:03:36,850 --> 08:03:42,430
miracle, the fact that I'm standing here. Dr. Martin Ranker at the farm and medical

6238
08:03:42,430 --> 08:03:50,830
clinic saved my life. Even more important, Dr. Brinker saved what function I have in this

6239
08:03:50,830 --> 08:03:54,850
arm now, but had not been for him, this sleeve would be empty.

6240
08:03:58,170 --> 08:04:05,070
You've seen and heard the medical profession. Another committee, as you have alluded to,

6241
08:04:06,590 --> 08:04:13,590
is revoking more license and suspending more doctors than its past administrations have

6242
08:04:13,590 --> 08:04:20,910
ever done. They don't like that. They're putting a tremendous amount of pressure on Dr. Patrick.

6243
08:04:21,730 --> 08:04:25,350
While they're putting that pressure on Dr. Patrick, and that's telling you

6244
08:04:26,910 --> 08:04:33,470
how they want to have high standards, they don't want everything they can to cut his appropriations.

6245
08:04:34,850 --> 08:04:41,320
They're doing everything they can to cut his ability to do his job.

6246
08:04:43,830 --> 08:04:45,450
The insurance industry

6247
08:04:45,450 --> 08:04:54,710
is guilty of complicity by the fact that they continue to ensure these doctors, my

6248
08:04:54,710 --> 08:04:59,230
own doctor. I'll not tell you his name because my case is not settled and we

6249
08:04:59,230 --> 08:05:04,390
do not take his deposition until this time next week. At that time I

6250
08:05:04,390 --> 08:05:10,610
would be happy to develop all information. They're continually sued for

6251
08:05:11,950 --> 08:05:15,770
to their patients, yet industry still ensures them

6252
08:05:19,360 --> 08:05:21,400
because they just raised the payments.

6253
08:05:22,960 --> 08:05:27,200
Any wonder why the good doctors are leaving the state? They're paying for the bad doctors.

6254
08:05:30,120 --> 08:05:33,680
Hospitals are equally guilty. They give these doctors credentials.

6255
08:05:36,250 --> 08:05:38,450
No one home they know they are bad.

6256
08:05:39,230 --> 08:05:44,410
My own doctor had had four lawsuits filed against him in one county.

6257
08:05:45,790 --> 08:05:51,390
The doctors in that recovery room were totally aware of his drug addiction.

6258
08:05:52,090 --> 08:05:54,810
The hospital was aware of his drug addiction.

6259
08:05:57,180 --> 08:06:01,320
Recovery room nurses saw him come into the recovery room,

6260
08:06:01,960 --> 08:06:05,740
sit in a chair, go to sleep, and lose control of his bodily functions.

6261
08:06:07,840 --> 08:06:13,620
The hospital knew about it because the nurses went to him and told him that he continued to practice.

6262
08:06:15,880 --> 08:06:22,600
Another instance, just came down a few days ago, a few weeks ago, a Dr. Merman Baker at

6263
08:06:22,600 --> 08:06:28,480
the Kingwood Hospital, the Kingwood Romero v. Kingwood Hospital.

6264
08:06:32,420 --> 08:06:34,440
He left the man in a vegetative state.

6265
08:06:36,490 --> 08:06:40,050
His blood had drained from his body, and Dr. Baker allowed it.

6266
08:06:41,230 --> 08:06:43,750
He was known to take valium by the handfuls.

6267
08:06:44,610 --> 08:06:51,770
The chief of staff said, I was aware that Dr. Baker had been dismissed from the hospital

6268
08:06:51,770 --> 08:06:57,210
nearby, that he had operated on the wrong leg of a man, he had amputee on the wrong leg

6269
08:06:57,210 --> 08:06:59,130
of a man, and that he takes value.

6270
08:06:59,630 --> 08:07:02,250
The hospital gave Dr. Baker credentials.

6271
08:07:02,730 --> 08:07:06,590
This was his last patient at Kingwood Hospital.

6272
08:07:07,650 --> 08:07:08,970
Any idea where Dr. Baker is today?

6273
08:07:09,610 --> 08:07:12,330
He's practicing medicine in Livingston, Texas, and

6274
08:07:15,430 --> 08:07:16,610
he's practicing medicine in

6275
08:07:16,610 --> 08:07:17,270
Livingston, Texas.

6276
08:07:19,690 --> 08:07:22,370
Medical schools contribute to this crisis by not weeding

6277
08:07:22,370 --> 08:07:27,990
out the students. Witness a recent graduate of UTMB who is a resident there

6278
08:07:27,990 --> 08:07:34,430
now drove his car off of the Seawall Boulevard while inserting a needle into

6279
08:07:34,430 --> 08:07:41,690
his arm. The needle was attached to a bag of narcotics which was hanging

6280
08:07:41,690 --> 08:07:46,410
from his roof. He had devised a method to hang the bag. He could drive down the road

6281
08:07:46,410 --> 08:07:52,370
and inject himself with narcotics. Didn't come out except in the report that the hospital

6282
08:07:52,370 --> 08:08:00,860
was aware, had been aware for three years of this man's addiction, and had done nothing

6283
08:08:01,560 --> 08:08:08,500
about it. What's the solution to this crisis? I don't know. But I'll offer this suggestion.

6284
08:08:09,280 --> 08:08:12,420
The medical profession is complete and unequivocal

6285
08:08:15,650 --> 08:08:18,870
bystanders, and then they back up their words

6286
08:08:18,870 --> 08:08:19,850
with their actions.

6287
08:08:23,400 --> 08:08:24,920
For the competent doctors who

6288
08:08:27,540 --> 08:08:31,580
hear a lot about liner from California, prefer to look at

6289
08:08:31,580 --> 08:08:32,020
New York.

6290
08:08:33,480 --> 08:08:36,180
The industry there is regulated highly.

6291
08:08:37,800 --> 08:08:41,420
The medical profession, they have a medical board that acts.

6292
08:08:41,420 --> 08:08:48,460
If a doctor is convicted of malpractice, his name is posted on the wall of the hospital

6293
08:08:48,460 --> 08:08:49,500
that he practices in.

6294
08:08:50,700 --> 08:08:52,020
His infection rate,

6295
08:08:54,320 --> 08:08:55,480
fever rate in

6296
08:08:59,410 --> 08:09:00,870
Texas, it's opaque.

6297
08:09:03,720 --> 08:09:06,500
How we found out about our doctor was not from the doctor's records.

6298
08:09:07,720 --> 08:09:11,920
How we found out was from nurses and other people.

6299
08:09:12,640 --> 08:09:16,060
My doctor had had a drug addiction since he was in high school.

6300
08:09:17,720 --> 08:09:19,660
He's now practiced in eight cities.

6301
08:09:22,880 --> 08:09:23,580
He is still practicing.

6302
08:09:24,000 --> 08:09:26,360
He retired from Conroe on two days notice.

6303
08:09:27,660 --> 08:09:32,120
We don't know why, but we've heard why, but we can't prove it.

6304
08:09:33,760 --> 08:09:36,600
I'll be happy to talk about it next week and tell you, but we're going to find out.

6305
08:09:38,160 --> 08:09:41,060
I've heard Mr. Gatiss and Mr. King talk about money.

6306
08:09:42,100 --> 08:09:43,420
There'll be no money in this for me.

6307
08:09:44,820 --> 08:09:49,960
The little keywood case kill any rewards that I might get from the hospital.

6308
08:09:50,700 --> 08:09:52,200
But Dr. Cain, he has no insurance.

6309
08:09:52,640 --> 08:09:53,600
He claims he is broke.

6310
08:09:54,900 --> 08:09:56,060
We're going to find out.

6311
08:09:57,020 --> 08:10:02,800
We know that he offered his attorneys $100,000 worth of property to stay on the case

6312
08:10:02,800 --> 08:10:07,420
from the father petition that was designed because he wouldn't pay them.

6313
08:10:11,370 --> 08:10:12,590
That's what I'm going to go after.

6314
08:10:13,630 --> 08:10:13,870
Why?

6315
08:10:14,590 --> 08:10:16,190
Because I'm entitled to it.

6316
08:10:16,190 --> 08:10:21,550
I was doing 30% of my life unable to move my arm.

6317
08:10:23,050 --> 08:10:24,210
It was not race.

6318
08:10:25,470 --> 08:10:26,590
That's just all it would do.

6319
08:10:28,700 --> 08:10:30,300
I had to change my life style.

6320
08:10:30,560 --> 08:10:33,160
I had to go from being right-handed to being left-handed.

6321
08:10:34,840 --> 08:10:36,140
Change your brain sometime.

6322
08:10:37,360 --> 08:10:38,360
You're right-handed.

6323
08:10:38,760 --> 08:10:40,320
Use your left hand for nothing else.

6324
08:10:42,940 --> 08:10:46,260
It took me two years to learn how to do it.

6325
08:10:46,820 --> 08:10:48,580
And I still haven't completely learned that.

6326
08:10:48,580 --> 08:10:52,770
The hospital refused to credential these doctors.

6327
08:10:55,180 --> 08:11:01,340
If they do credential, I sign somebody to watch them every step of the way.

6328
08:11:03,440 --> 08:11:07,920
Do not allow them to even breathe without supervision.

6329
08:11:11,400 --> 08:11:12,200
Call the friend today.

6330
08:11:12,440 --> 08:11:14,200
I did not know about New York until today.

6331
08:11:14,660 --> 08:11:15,740
I called a friend up there.

6332
08:11:16,760 --> 08:11:21,500
They do post-doctors who have been sued, who have judgments against them.

6333
08:11:23,540 --> 08:11:25,020
In the hospital is where they practice.

6334
08:11:25,020 --> 08:11:34,100
this. When they started doing this, the things that drove the market up went down. Frequency

6335
08:11:34,710 --> 08:11:35,420
and severity.

6336
08:11:37,920 --> 08:11:40,160
Here's good examples of frequency and severity.

6337
08:11:42,540 --> 08:11:44,160
They solved that problem not

6338
08:11:44,160 --> 08:11:49,140
by putting it on the backs of the people. But by saying to the doctors, you will be

6339
08:11:49,140 --> 08:11:49,620
exposed.

6340
08:11:52,870 --> 08:11:54,630
You will be shown what you are.

6341
08:11:57,480 --> 08:11:59,460
And their rates went down.

6342
08:12:01,790 --> 08:12:02,490
Now we'll add

6343
08:12:02,490 --> 08:12:09,730
this to you, 6% of the doctors is estimated to cause 51% of the problems. There are 55,000

6344
08:12:09,730 --> 08:12:11,130
doctors in Texas.

6345
08:12:13,520 --> 08:12:17,680
Do you know how many doctors have translated into bad doctors? About 3,500,

6346
08:12:23,110 --> 08:12:27,550
but they account for 52% of the claims that are made.

6347
08:12:29,660 --> 08:12:30,600
Don't balance the books on the

6348
08:12:30,600 --> 08:12:34,780
backs of the people. Don't sit as jury as they may seem to have not heard.

6349
08:12:40,300 --> 08:12:40,820
Don't

6350
08:12:40,820 --> 08:12:44,840
people you've heard here have occurred they bought a lot of stuff.

6351
08:12:45,000 --> 08:12:49,500
Will money change it? Will money make it better? No, money won't blow my mind back.

6352
08:12:50,220 --> 08:12:52,120
Money will not bring back the boy that died,

6353
08:12:54,630 --> 08:12:55,630
but it will help.

6354
08:12:58,220 --> 08:12:58,640
Thank you.

6355
08:12:59,140 --> 08:13:00,400
Thank you very much for being here.

6356
08:13:01,240 --> 08:13:04,960
Ms. Davis, I thank you for taking care of us.

6357
08:13:06,420 --> 08:13:07,280
Thank you, sir. Thank you.

6358
08:13:08,840 --> 08:13:15,200
to recognize is Laura Castleberry to speak against HJR3 and HP3.

6359
08:13:18,210 --> 08:13:22,030
I am told that this is the last witness affirmation.

6360
08:13:22,850 --> 08:13:26,230
Ms. Castleberry and everybody else who has waited so long,

6361
08:13:26,390 --> 08:13:30,530
I really, really appreciate your patience with the committee process.

6362
08:13:31,210 --> 08:13:33,210
And if you want to thank you very much.

6363
08:13:33,610 --> 08:13:34,190
Thank you.

6364
08:13:36,260 --> 08:13:37,640
Oh, we have, we have another one.

6365
08:13:41,240 --> 08:13:45,380
If there is anyone else who wants to testify before the evening's over,

6366
08:13:45,520 --> 08:13:48,340
Ms. Davis has indicated there was a county commissioner who may have turned

6367
08:13:48,340 --> 08:13:50,020
in a witness affirmation.

6368
08:13:50,480 --> 08:13:51,840
So you have what have you turned it in?

6369
08:13:57,290 --> 08:13:59,110
Mr. Gibson, can we share a gift for the day?

6370
08:13:59,970 --> 08:14:00,850
Gibson's the last day.

6371
08:14:07,460 --> 08:14:10,180
If she can go ahead and Hillary can talk to him.

6372
08:14:12,400 --> 08:14:13,540
Mr. Gibson, can we share a gift for the day?

6373
08:14:13,580 --> 08:14:16,860
Mr. Gibson, we're going to, I think to just have two.

6374
08:14:18,580 --> 08:14:22,580
Yes, if you don't mind, we want to make sure our paperwork is right.

6375
08:14:23,380 --> 08:14:27,920
Ms. Castleberry, please thank you and thank you again for being so patient with us.

6376
08:14:27,980 --> 08:14:28,440
Thank you.

6377
08:14:29,520 --> 08:14:31,020
Mr. State United.

6378
08:14:31,580 --> 08:14:33,120
Can you tell us your name and who you represent?

6379
08:14:33,520 --> 08:14:37,460
My name is Laura Castleberry and I'm here on behalf of my daughter Emily.

6380
08:14:38,200 --> 08:14:40,800
I'm speaking about non-economic damages.

6381
08:14:41,820 --> 08:14:49,960
Four years ago, just two days before Thanksgiving, I went into the hospital to give birth to what I would lead to believe would be a normal, healthy child.

6382
08:14:50,900 --> 08:14:59,980
Like any concerned parent, I followed all my doctor's instructions, ate the right foods, took my vitamins, and went for regular, gynecological advice.

6383
08:15:00,000 --> 08:15:07,060
As is customary, my doctor ordered a sonogram. I visited the perinatologist to have a sonogram

6384
08:15:07,060 --> 08:15:13,780
performed. In fact, during my pregnancy I would have not one but four such sonograms done,

6385
08:15:14,340 --> 08:15:20,880
one of which was a detailed review of the baby's heart. At all of these sonograms I was assured

6386
08:15:20,880 --> 08:15:26,200
that everything was fine and the baby would be normal. Continually I was told that my

6387
08:15:26,200 --> 08:15:32,180
baby would be a normal, healthy child. After such diagnosis, my doctor decided to have me

6388
08:15:32,180 --> 08:15:37,180
admitted to see Northwest for a plan C section, which was necessary due to a past pregnancy.

6389
08:15:38,120 --> 08:15:43,980
When my daughter Emily was born, she was extremely blue. All pleasant conversation in the operating

6390
08:15:43,980 --> 08:15:50,440
room stopped. In one fast, frightening moment, it became apparent to my husband and me that

6391
08:15:50,440 --> 08:15:55,140
this was not a normal, healthy baby. Because we had believed that everything was normal,

6392
08:15:55,140 --> 08:15:59,960
she was born in a facility that possessed none of the proper equipment to either help

6393
08:15:59,960 --> 08:16:01,240
or diagnose her problem.

6394
08:16:02,140 --> 08:16:06,760
Hours were spent trying to stabilize her so that she could be taken to Brackenridge where

6395
08:16:06,760 --> 08:16:11,620
she could be properly treated and where doctors with specific expertise would be able to

6396
08:16:11,620 --> 08:16:13,640
first diagnose and then treat Emily.

6397
08:16:14,360 --> 08:16:19,040
When she arrived to Brackenridge, a hard echo was done immediately and we were grateful

6398
08:16:19,040 --> 08:16:22,760
to hear the doctor come and tell us, good news, it's not the heart.

6399
08:16:22,760 --> 08:16:27,220
At which point, all medical attention was focused away from Emily's heart.

6400
08:16:27,960 --> 08:16:30,560
This was the second mistake made by another doctor.

6401
08:16:31,500 --> 08:16:35,540
After more than 10 hours of intubations, transfusions, and resuscitations,

6402
08:16:36,540 --> 08:16:39,280
we were told that Emily would not be able to be saved anymore.

6403
08:16:40,100 --> 08:16:42,680
She was brought into her room where

6404
08:16:45,080 --> 08:16:47,220
the doctor's final words were,

6405
08:16:48,720 --> 08:16:53,900
there is no heartbeat before handing her to me where she died in my arms.

6406
08:16:53,900 --> 08:16:54,620
The

6407
08:17:02,080 --> 08:17:06,480
doctors and medical staff were stunned and confused and an autopsy was ordered.

6408
08:17:07,580 --> 08:17:13,280
The results of the autopsy clearly showed a heart defect called transposition of the great vessel.

6409
08:17:14,560 --> 08:17:21,000
Later all four sonograms and the heart echo were reviewed only to show that transposition

6410
08:17:21,410 --> 08:17:28,120
was clearly evident on all sonograms and the echo and was horribly missed by the doctors.

6411
08:17:29,660 --> 08:17:34,360
Transposition is a simple defect that has a 95% survival rate.

6412
08:17:35,280 --> 08:17:41,260
It is a common and fairly easily fixed heart defect and one of the first things a perinatologist

6413
08:17:41,260 --> 08:17:48,840
and a cardiologist look for simply stated this diagnosis was missed and had it been

6414
08:17:48,840 --> 08:17:52,160
caught earlier my daughter Emily would be alive today.

6415
08:17:56,120 --> 08:18:01,720
Adding to the severe pain is the fact that one of the doctors had known that he had made

6416
08:18:01,720 --> 08:18:06,420
a mistake and it was the insurance company who made the process so hurtful.

6417
08:18:07,420 --> 08:18:12,100
The doctor admitted his mistake and wanted to settle but the insurance company was determined

6418
08:18:12,100 --> 08:18:16,920
not only to fight this but to make it both miserable for me and my husband as well

6419
08:18:16,920 --> 08:18:17,940
as the doctor involved.

6420
08:18:18,740 --> 08:18:20,360
Both parties wanted to settle.

6421
08:18:20,360 --> 08:18:26,320
In fact, it was the insurance company's extreme antagonism of the situation that led the suit

6422
08:18:26,320 --> 08:18:31,180
to go on for much longer than either party wanted, raising their own costs, and ended

6423
08:18:31,180 --> 08:18:35,600
up settling the suit for a much higher amount than both parties would have agreed to much

6424
08:18:35,600 --> 08:18:36,820
earlier on in the process.

6425
08:18:39,410 --> 08:18:41,930
I don't know how you can put a price on the life of a child,

6426
08:18:45,840 --> 08:18:46,780
nor do I understand

6427
08:18:46,780 --> 08:18:51,280
how the insurance company can send people out to deliberately and maliciously antagonize

6428
08:18:51,280 --> 08:18:53,540
people who have been hurt so dramatically.

6429
08:18:54,340 --> 08:18:56,740
No amount of money will bring back our child.

6430
08:18:57,800 --> 08:19:02,960
And no amount of money can ever heal the hurt we feel over the needless loss of our daughter.

6431
08:19:04,140 --> 08:19:09,340
The doctors and the insurance companies, like everyone else in the world, must be held accountable.

6432
08:19:10,500 --> 08:19:12,340
Our doctor wanted to do just that.

6433
08:19:13,060 --> 08:19:15,580
He felt bad for what he did and he did want to settle.

6434
08:19:16,220 --> 08:19:19,000
He wanted to do something to try and help make this right.

6435
08:19:19,000 --> 08:19:26,480
But putting a cap on wrongful death is not helping the doctors and it's brutally punishing

6436
08:19:26,480 --> 08:19:32,180
the victims by just putting that money back into the insurance company's hands.

6437
08:19:33,340 --> 08:19:38,580
If it weren't for the egregious errors made by the doctors, while I was being told I was

6438
08:19:38,580 --> 08:19:45,660
getting the best medical care, my daughter would be alive, I'd be home right now playing

6439
08:19:45,660 --> 08:19:49,660
with her instead of being here, and there's nothing for us in that.

6440
08:19:49,660 --> 08:19:50,260
Thank

6441
08:19:53,460 --> 08:19:54,220
you, Mr. Kesselberry.

6442
08:20:01,830 --> 08:20:06,050
To recognize us, Lester Gibson, speak against the bill.

6443
08:20:07,310 --> 08:20:12,250
Mr. Gibson, if you can identify yourself and tell us who you are with,

6444
08:20:12,590 --> 08:20:14,770
you're also going to speak against HDR3.

6445
08:20:15,270 --> 08:20:16,030
Thank you, Mr. Gibson.

6446
08:20:16,690 --> 08:20:17,990
My name is Lester Gibson.

6447
08:20:18,790 --> 08:20:20,510
I'm a McClellan County Commissioner.

6448
08:20:21,030 --> 08:20:22,710
He left me from Precinct 2.

6449
08:20:23,550 --> 08:20:28,630
I'm the current Vice President of the Texas Organization of Black County Commissioners.

6450
08:20:29,670 --> 08:20:35,470
Repeatedly in this hearing I have heard the question asked by committed members, why should

6451
08:20:35,470 --> 08:20:37,030
we trust the jurors?

6452
08:20:37,950 --> 08:20:44,750
I ask you this question, why should I trust this committee to make public policy?

6453
08:20:45,930 --> 08:20:54,350
Personally, I trust jurors, they trust you, which was given power by the people to make

6454
08:20:54,350 --> 08:20:56,330
public policy for the people.

6455
08:20:56,330 --> 08:21:04,150
In my opinion, the proposed bills do not present a level plan field for people, specifically

6456
08:21:04,150 --> 08:21:04,910
poor people.

6457
08:21:06,030 --> 08:21:10,110
The advantages of these bills are directed toward the insurance industry.

6458
08:21:11,190 --> 08:21:19,070
The medical profession has a rooted problem caused by the insurance industry and not future

6459
08:21:19,070 --> 08:21:20,590
or potential plighters.

6460
08:21:20,590 --> 08:21:29,110
Why not cap the insurance companies proportionately to the proposed cap as recommended for planters

6461
08:21:29,110 --> 08:21:30,890
non-economic damages?

6462
08:21:31,870 --> 08:21:39,110
I am against House Bill 3 and House Joint Resolution 3 as conscripted and proposed.

6463
08:21:40,170 --> 08:21:43,610
My opposition is based upon the following four factors.

6464
08:21:43,610 --> 08:21:51,730
Number one, House Bill 3 should make health care affordable and accessible to all Texans.

6465
08:21:54,120 --> 08:22:00,120
There is nothing in House Bill 3 which requires insurance confidence to lower their rates.

6466
08:22:00,940 --> 08:22:08,700
Number three, the $250,000 cap places and arbitrary value on one's life.

6467
08:22:09,460 --> 08:22:17,000
And four, there appears to be no benefit to Texas from this bill, not that this bill seemed

6468
08:22:17,000 --> 08:22:19,260
to have no premiums for doctors.

6469
08:22:20,320 --> 08:22:25,620
I thank you Chairman Nixon and the committee members for providing me the opportunity to

6470
08:22:25,620 --> 08:22:30,280
express my opinion on House Bill 3 and House Joint Resolution 3.

6471
08:22:30,460 --> 08:22:30,840
Thank you.

6472
08:22:32,200 --> 08:22:33,700
I appreciate it.

6473
08:22:33,880 --> 08:22:38,100
A lot of your comments have been echoed by, you know, many of the other people who

6474
08:22:38,100 --> 08:22:46,360
against it. Okay. I do not show any other witnesses having

6475
08:22:46,360 --> 08:22:53,300
wishing to testify on House Bill 3 or House Joint Resolution 3. Is there anyone else who

6476
08:22:53,300 --> 08:23:01,460
wishes to testify? Is 4 on or against House Bill 3 or House Joint Resolution 3? Very

6477
08:23:01,460 --> 08:23:14,580
good. The author, I close on HB3 and HJR3 and without comments, any further

6478
08:23:14,580 --> 08:23:23,320
comments. It is intended to chair to leave House Bill 3 pending. Is there an

6479
08:23:23,320 --> 08:23:30,780
objection? Hearing none. Chair, it is a word that it will be left pending. It is

6480
08:23:30,780 --> 08:23:35,160
As you attended the chair to leave House during Resolution 3 pending, is there an objection?

6481
08:23:36,120 --> 08:23:38,100
Hearing none, it is so ordered.

6482
08:23:42,440 --> 08:23:45,200
Representative Gattis, you've been wanting to do something all day.

6483
08:23:45,340 --> 08:23:49,540
Moves at the House Committee on Civil Practices adjourned.

6484
08:23:51,600 --> 08:23:53,400
Is that hard to understand?

6485
08:23:54,220 --> 08:23:54,580
Yes.

6486
08:23:55,200 --> 08:23:59,480
I will recognize you to make a comment, I guess.

6487
08:23:59,480 --> 08:24:04,680
Was there an innovation that I could withdraw my recognition?

6488
08:24:06,440 --> 08:24:07,260
I understood.

6489
08:24:08,080 --> 08:24:12,520
I just want to say grateful for the members of the committee and for everybody in this room.

6490
08:24:13,820 --> 08:24:22,320
I don't wish to demagogue and I don't wish to criticize, but I am very disappointed as a humble 24-year-old freshman member of this committee

6491
08:24:24,120 --> 08:24:30,820
that TMLT did not, as I said, they would return to answer my concerns and questions about

6492
08:24:30,820 --> 08:24:33,340
the rate reduction on this bill and we'd like to power up with the industry.

6493
08:24:33,340 --> 08:24:40,620
I appreciate your, Mr. Rosen, I wish I now had not recognized it because the fellow from

6494
08:24:40,620 --> 08:24:43,480
TMLT became ill and had to go home.

6495
08:24:44,500 --> 08:24:48,820
And it wasn't because he didn't want to, he sat here all day and I think he got

6496
08:24:48,820 --> 08:24:51,080
sick in the hall and had to leave.

6497
08:24:51,080 --> 08:24:58,660
So, we would probably, if you'd like, have an opportunity to visit with him, and I went

6498
08:24:58,660 --> 08:25:02,720
out to go talk to him during the break, and he had our heads to leave at that time.

6499
08:25:03,280 --> 08:25:03,280
So,

6500
08:25:05,580 --> 08:25:10,940
now, Representative Gattis moves that the House may have some questions adjourned.

6501
08:25:11,100 --> 08:25:11,620
Is there objection?

6502
08:25:11,980 --> 08:25:13,340
Hearing none, there's some order.

6503
08:25:13,520 --> 08:25:15,880
Thank you very much, everyone, for your hard work today.