Investigation: Tort reforms limit options for some Texans - Dallas News | myFOXdfw.com

Investigation: Tort reforms limit options for some Texans

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DALLAS -

Health care is a major issue in this presidential election. Everyone is trying to figure out how to pay for it without bankrupting our country.

During his run for the White House, Governor Rick Perry pushed states to do as Texas did back in 2003 and cap medical malpractice lawsuits. The idea was, by eliminating frivolous lawsuits and capping the amount a jury can award, those benefits would be passed down to patients in the form of lower healthcare costs and more doctors working in Texas.

But Fox 4 found some families don't buy it.

"You are my sunshine, my only sunshine," Jennifer Dickerson sings to her baby daughter Ava on a family videotape.

Dickerson will never forget those final moments when her daughter took her last breath.

"I don't know how long I held her. It didn't seem long enough," Dickerson said.

The Bernal family is reminded daily of what might have been for their 4-year-old, Kaylee.

"They told us they did not know the extent of the damage without having a heart beat that long," Robert Bernal said.

And Bill and Kelly Putnam watched Kelly's dad drown in front of them at a nursing home.

"He is flailing his arms and legs for his last breath and then he stops," said Bill Putnam.

These North Texas families all believe they were victims of medical malpractice and they all hit the same brick wall.

"No one will take the case," said Jennifer Dickerson. "It is going to be too expensive."

"We cannot even get it filed," said Robert Bernal.

"There is nothing we can do because of tort reform," said Bill Putnam.

Back in 2003, the Texas Legislature passed tort reform and later Governor Rick Perry and his wife pushed voters to change the constitution.

"Proposition 12 protects your family," said Anita Perry in a television commercial.

But did it? The reform put caps of $250,000 on non-economic damages like pain and suffering. That means people who don't work, like the elderly, babies and stay-at-home parents are limited even if they win a malpractice lawsuit.

Perry called it a win for Texans and during his presidential run he claimed much-needed doctors were coming to Texas.

"This last year, 21,000 more physicians [are] practicing medicine in Texas because they know they can come there and do what they love and not be sued frivolously," Perry said.

But within days Politifact, a government fact checking project run by the Tampa Bay Times, reported Perry was "flat out wrong." It said his numbers were off by almost 8,000.

With the courthouse doors being closed off to so many, Fox 4 questioned who are the winners and the losers.

"The big winners have to be the patients who have more access to specialized and timely care than they previously did," said Jon Opelt of Texas Alliance for Patient Access. The group represents doctors, hospitals, nursing homes and insurance companies.

"The physician growth in Texas has been dramatic since the passage of these reforms," said Opelt. "It has been dramatic in Dallas, Texas."

"Some of that is simple distortion," said Charles Silver, a law professor at University of Texas at Austin.

Silver says doctors are coming to Texas because the population is growing.

Silver is part of the only educational research group that studied the historical growth rate. Was it dramatic? He says not even close.

"Doctors came to Texas in numbers every year before 2003 and they would have kept coming here after 2003, had there been no tort reform," Silver said.

In fact, Silver's group, which gets no money from special interests, says the rate of growth actually slowed after tort reform in Texas.

"Texas has fallen farther and farther and farther behind the average U.S, state." he continued.

So what about insurance coverage?

"We had 13 insurance companies writing coverage in this state and that dwindled to just 4," Jon Opelt said.

Opelt said after tort reform was passed, insurance companies returned to Texas and premiums for doctors have gone down substantially, around 50 percent. So have those costs been passed on to consumers like us?

"We are paying higher bills," said Tom Smith of Public Citizen. "The cost of health care premiums in Texas has gone up 51 percent."

Studies show the average Texas family paid around $9,000 for health insurance in 2003 and more than $14,000 in 2010. That is $655 higher than the national average of $13,871.

"The number of people who have insurance has increased. As a percentage of the whole, it has decreased," said Opelt.

In other words, more people have insurance in Texas because our population has grown but studies show more than a quarter, 27.8 percent, have no insurance -- giving Texas top honors for the most residents uninsured.

"Someone needs to stand up and say this has got to stop," said Bill Putnam.

Every Sunday for the past three years, Bill and Kelly Putnam of Frisco take to the streets in front of the Signature Point Nursing Home.

They say a nurse forced medicine into Kelly's dad's feeding tube using a syringe. The liquid went into his lungs. The state licensing authority found "no deficiencies" and the home says, "No evidence to substantiate the Putnam's claim."

But the Texas Board of Nursing found the nurse involved committed numerous medical errors and the home directed the nurse to change her medical records which may have been intended to "deceive or mislead." The home disagrees with the nursing board's findings.

"The people we were supposed to be protecting are the ones we've thrown under the bus," said Bill Putnam.

The Putnams don't believe the value of a human life should be based on a paycheck.

"We threw legitimate lawsuits out the door," Bill Putnam continued.

"It is holding a person accountable for their actions," said Kelly Putnam. "We never had a clue that tort reform would have an impact on our life like this. It can happen to anybody."

The Bernals struggle to get the best care for their daughter Kaylee. After complications at birth, she cannot walk or talk. Now they have to depend on Medicaid so taxpayers foot the bill.

"All we are trying to do is make the best of a bad situation with our daughter," said Robert Bernal. "We should leave it up to a jury to make these decisions."

And the memory of baby Ava and the pain of losing her will live with the Dickersons forever. The Texas Board of Medical Examiners found their doctor, who is a specialist, "failed to recognize and diagnose" their baby's congenital diaphragmatic hernia during an ultrasound.

That failure "left the [mother] with no opportunity to seek treatment for the fetus." The board fined him and ordered him to get more training. For the Dickersons, it felt like a slap on the wrist.

"We feel like it is going to be overlooked," said Jennifer Dickerson. "It has completely changed our lives."

The Dickersons didn't just lose their daughter; they feel like the court house doors were shut in their face.

"Like the insurance companies rule the world," said Todd Dickerson. "They won, and they don't care," added Jennifer Dickerson.

Kelly and Bill Putnam are not just speaking out, they are organizing. They are building a website and say they will continue to picket every Sunday, the day Kelly's dad died.

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