Monday, December 20, 2010

My Thoughts About Tort Reform in Texas

Many of you have probably read an article published this weekend in the New York Times about tort reform in Texas which featured a story from a patient at CHRISTUS Santa Rosa in San Antonio, Texas.

In an effort to protect Americans and their personal information, federal privacy laws (like HIPAA) threaten us with legal action if we comment on the care of any patient. Therefore, I can’t discuss Ms. Spears’ medical condition or treatment at our facility in detail. I can, however, extend to her my deepest consideration and compassion for what must be an extremely difficult situation for her and her family.

I can say that I have reviewed the documentation related to the incident described in the article, and it is my opinion that we provided care that was entirely complete and appropriate.

Because I can’t provide any further details, I would like to take this opportunity to add my voice to the dialogue regarding the focus of the article, tort reform in Texas.

Let me be clear: if an error occurs in our delivery processes, the patient and his or her family should be told the truth and should be financially reimbursed for the costs which have been caused by the error. In all my years as a practicing physician and even now as the president and CEO of an international health care system, I understand the great responsibility we are given by our patients and their families when they choose to place their lives and the lives of their loved ones in our hands. This is why I have always said that for CHRISTUS Health, excellence is a necessity, not a luxury.

Tort reform in Texas does not do away with financial awards to patients who have been wrongfully harmed by inappropriate treatment. It merely caps noneconomic damages at $250,000 per health care provider, with a maximum award of $750,000. Since tort reform was passed in 2003, these suits have continued to be filed, including against Emergency Room physicians, and damages have continued to be awarded.

We have known for years that the legal system put into place to deal with less-than-favorable quality outcomes in health care were necessary, but inappropriate as long as the potential settlements were uncapped and limitless. Support for tort reform does not mean refusing to accept responsibility, nor does it mean that providers are held to a lower quality standard. Instead, it means supporting paying what is due, admitting what was done incorrectly and doing everything possible to mitigate negative outcomes and create a positive solution for patients and their families.

Since the passage of tort reform, physicians have also begun to see Texas as a more attractive environment in which to practice medicine, and some studies show that our physician population has increased 31 percent. As we contemplate a current and worsening primary physician shortage, this is good news for Texans, who have more access to health care than they did before.

Specifically in CHRISTUS Health, since tort reform was passed, our expenses for litigation have been reduced dramatically. We have used these savings to further improve our quality and patient safety by reinvesting them in programs and projects throughout our entire health system. And as a result, we believe both the number of claims and the size of the claims have been even reduced further than as a result of tort reform alone.

Each of our 13 regions can submit projects which they believe, if implemented, would accelerate improvements in their quality of care. Based on competitive reviews, several of these are funded each year from these savings. Programs in the past which have received such support include providing standardized competency testing for all nurses, and providing the latest and safest way to lift heavy patients from one location to another. These programs were designed, funded and piloted and are now being universally implemented across the entire system.

The first program funded this way involved certifying all nurses and re-educating physicians in the appropriate use of fetal monitors. This was because, as many of you are aware, catastrophic events for the baby during the delivery process account for the largest number of lawsuits past and present in most hospitals and health systems. This signaled to us that improving “fetal monitor literacy” in our caregivers would result in an even higher level of safety for our youngest patients. After requiring this higher level of proven clinical competence in applying and reading fetal monitor strips during the labor and delivery process, CHRISTUS Health has successfully, in the last 12 months, delivered consecutively 17,000 healthy babies without any fetal abnormalities.

In the end, when we talk to patients who have had less-than-favorable outcomes, we believe that they truly want to be treated fairly and to do whatever is necessary to make sure the error does not recur. Tort reform makes both of these goals possible and creates a win-win situation for both the health care providers and the patients who receive our care.

I, along with the CHRISTUS family of 30,000 Associates, am dedicated to our mission of extending the healing ministry of Jesus Christ every day. We understand and take very seriously the awesome responsibility of caring for the health and lives of our friends and neighbors, and will continue to provide high quality, compassionate care at our facilities across the U.S. and Mexico.


Anonymous said...

As a former employee, all I can say is, that you need to actually dress like the janitor, and walk around the hospital, and just listen. Everything is minimized, staffing, equipment etc. It is not a pleasant place to work, and there is an lack of respect between the medical staff and the nursing staff that is incredible.

Bruce Phillips said...

Surely, Dr. Tom, these are not all of your thoughts about tort reform in Texas.

Surely you are still giddy, seven years later, over legislation of the "willful and wanton" standard of proof, which makes proving legal responsibility for ER malpractice all but impossible. This of course gives you (i.e., Christus Santa Rosa) the luxury to profess that you will financially reimburse victims of ER malpractice, and yet in the matter of Connie Spears wash your hands of any responsibility, so that your profession is illusory.

I don't know what is more revealing about your response to the NY Times article: that you completely ignore the issue it raised over the willful and wanton standard, or that you so hastily and eagerly opine, simply by "reviewing the documentation," that no medical malpractice happened to Connie Spears (after you've spent how many decades as an administrator and not a full-time practicing physician?).

What are your other thoughts about tort reform, Dr. Tom? How about the millions of dollars your industry, HMO corporations, and insurance lobbies spent to win inclusion of the willful and wanton standard in the tort-reform bill? Do you think about that money, and who is owed what?

You cannot show objective and verifiable data that (competent) trial lawyers in Texas are still accepting ER malpractice cases, let alone ever winning them for the victims. I know trial lawyers all over this state, and because of the willful and wanton standard none of them will even look at an ER case anymore. Your claim that these cases are still being pursued is, I suspect, based on "data" concocted by tort reform lobbyists whose continued importance within the Austin and Washington power structures requires always having an evil Bogeyman (trial lawyers) to rail against.

As for damage caps: you, being a highly intelligent and successful healthcare executive, know full well that caps make many malpractice cases financially unfeasible, and thus unlikely to be pursued, when huge economic losses cannot be proved. Tort reform hurts the elderly, children, homemakers, the disabled, and the poor. Your thoughts about tort reform likely never go to these low- and non-wage earners when they are victims of medical malpractice.

You say tort reform is "win-win"? Try telling that to Connie Spears. Only be sure to have a long look at her leg amputations. And then look within your soul. Reflect earnestly on her tragedy, what her life must be like now, and what should be done for her.

Let's then have your thoughts about tort reform.

R. Bruce Phillips
San Antonio

Dr. Tom said...

Anonymous, I’m sorry to hear you feel that a CHRISTUS facility was not a pleasant place to work. I believe strongly that the 30,000 Associates who are part of the CHRISTUS family and work daily to fulfill our mission should be satisfied with their working environments. I have said many times that every CHRISTUS Associate is a CHRISTUS healer, regardless of their job title or duties, and our Catholic heritage calls us to value each patient, resident, volunteer, physician and Associate in the highest regard. We’re always working to improve the satisfaction of the care we provide, so I would love to hear more from you. Please email me at communications [at]

Dr. Tom said...

Mr. Phillips,

Thank you for your comment. I certainly understand that your perspective as a personal injury lawyer would differ from mine.

Although I am no longer a practicing physician, I have made it my quest in my time as team leader of CHRISTUS Health to turn us toward an unflinching pursuit of excellence because my experience as a caregiver informs my understanding of the great responsibility we are given by our patients and their families when they choose to place their lives and the lives of their loved ones in our hands.

In fact, I can remember the exact moment when the gravity of this awesome responsibility really became clear to me; I remember the day just like it was yesterday.

When I was a third-year medical resident, I was assigned to care for a 10-year-old child who had come into our emergency room. As I came out of room the child’s room after the examination, my attending physician must have noticed the puzzled (and somewhat shocked) look on my face, because he asked me what was wrong.

“Do you not know the diagnosis?” he said.

I told him that I knew the exact diagnosis, and had just finished telling the child’s mother that her child would require surgery. Her response was, “Alright, then. Do whatever you have to do to make him better.”

And then it hit me that this parent trusted me completely with her child’s life, and I was astounded by the awesome responsibility that accompanies the sacred work we do in health care.

Every day, patients come into our programs and facilities and put their health and lives—or the lives of their loved ones—into our hands. This is why I have always said that for CHRISTUS Health, excellence is a necessity, not a luxury.

It is from this perspective that I can assure you that my review of the Ms. Spears’ chart was thorough, correct, and complete. While I cannot provide you with further details about what is contained in that chart, I know from a clinical perspective that the care she was provided in this instance was entirely appropriate. This has nothing to do with the standard Emergency Department physicians are held to—I believe in this case, we provided correct care, and strive to do so every day in our Emergency Departments because we are in the business of caring for people. In fact, we collect quantifiable data daily from our patients about the service we are rendering in addition to our strict quality measurements. This is who we are. It is what we do.

I’m sure you are more familiar with the large cost of litigation than I am. However, I continue to believe that our system of tort reform provides payments for incorrect treatment and mitigating negative outcomes while supporting a system that allows physicians to care for people who need them in a reasonable and effective manner.

That said, Mr. Phillips, I believe a conversation can only happen between two parties who are both willing to have their minds changed. I cannot convince you that both my experience as a physician and leader of an international health system inform my belief in the success and appropriateness of tort reform any more than you can convince me that my claims are “based on ‘data concocted by tort reform lobbyists whose. . .power structures requires always having an evil Bogeyman (trial lawyers) to rail against.”

So thank you for your comments, Mr. Phillips, and I hope that some day we can find common ground regarding a system that supports both providers and patients.

Anonymous said...

So tell me, was Mrs. Spears cared for while in the ER? Was she admitted to Santa Rosa for observation overnight? What exactly is it that Santa Rosa did for Mrs. Spears? Besides ignore her needs and in essence leave her without her legs what exactly is it that your hospital did for her?

Dr. Tom said...

Hi Anonymous, thank you for joining in the conversation. I always welcome feedback from those who care for our patients and community members as much as we do.

As I said in my post, federal regulations severely restrict what information I can release about the care of our patients. So I can’t give you details about the care we provided to Ms. Spears—I can only say that, as a physician and one-time director of a large Emergency Department—I reviewed the documentation of this case, and I feel the care we provided was absolutely complete and appropriate.

Thank you again for stopping by—I wish I could provide you more of the information you are searching for. However, I think we can both agree that the quality of the care we provide each and every person who enters our doors is of the utmost importance, whether that care occurs in an Emergency Department, clinic, or senior care facility.