CWB: The 2003 Legislature just passed a sweeping set of medical liability reforms and a proposed constitutional amendment to validate a non-economic damage cap in the state constitution. Texas physicians couldn’t be more pleased with the outcome. The statutory reforms included in House Bill 4 far exceed what many other states have passed. Caps on non-economic damages are: $250,000 per occurrence for all physicians; $250,000 per occurrence for a health care institution; and a second $250,000 per occurrence for any other, completely separate, institution. Periodic Payments are mandatory for future medical expenses and discretionary for others. Many procedural reforms on expert witness reports and pretrial depositions will help prevent frivolous suits. The definitions of a volunteer and a Good Samaritan were broadened to give greater protections to physicians who provide this care.

House Joint Resolution 3 also passed. It is the legislative vehicle establishing a statewide ballot initiative, Proposition 12, to validate the $250,000 non-economic damage cap in the state constitution. We currently are running a full scale, statewide campaign to pass the amendment, called "Yes on 12." Given expected turnout on the high end, if every practicing physician in Texas can persuade 21 friends and patients to vote "yes," the proposition will pass. So, stay tuned.

CWB: To truly understand how everything came into alignment, it’s important to put the Texas tort reform debate into context. You see, public policy in Texas is made in two-year cycles, and the five-month legislative session comes at the tail end of the 24 months. We refer to the 19 months before the legislative session as the "interim." We’ve learned that our success in the legislature is directly related to how well the medical community executes on some basics during the interim. The basics involve implementation of a well-developed strategic plan that bring together political action, including lots of physician and Alliance grassroots activism, sound policy development, message development and timely communications. Everything, and I mean all the ingredients, came into alignment during the 19-months before the 2003 Texas legislative session.

I don’t want to give you the impression that TMA did this by itself, because we did not. Organizations representing big and small business in Texas were extremely helpful, and we are most grateful for their efforts. The state’s hospital and nursing home associations were wonderful allies. Many others, medical and non-medical organizations alike, joined the fray. Governor Rick Perry, Lt. Governor David Dewhurst, Speaker Tom Craddick, and the bill sponsors skillfully maneuvered the legislation to passage, with support from both sides of the aisle. It was a great team effort.

CWB: Let’s start with a very thorough, TMA-directed, in-house research project dealing with tort law, liability insurance and medical discipline, to get the facts straight and to arrive at meaningful recommendations. Our Lt. Governor at the time, Bill Ratliff, who later carried House Bill 4 in the Senate, created an interim Senate Select Committee on Liability Reform. The Committee held hearings around the state, assessed the magnitude of the problem, gathered data and brought media attention to the issue. Physicians testified extensively about the crisis and its effect on access to care. They inundated the senators with their local stories. TMA provided the statewide research to validate the anecdotes. The committee concluded with recommendations to the 2003 legislature. This was our legislative foundation.

The access-to-care crisis as a result of lawsuit abuse and tort reform as a solution were prominent issues in the 2002 election cycle, from the Governor’s race on down the ballot. This put even more media attention on the issue and resulted in both gubernatorial candidates pledging to designate tort reform as a legislative emergency in the 2003 legislature. In this environment, two highly successful physician and Alliance grassroots efforts were underway. The first involved our lobbyists arranging local physician/legislator meetings with incumbents not faced with campaign opposition. The approach was first to get buy-in on the crisis and then the solution. The second effort was spearheaded by our political action committee, TEXPAC. Candidates that were generally in agreement with our approach on liability reform and other health care issues confronting the citizens of Texas received our strong support, and almost all of them were elected.

Our Border Health Caucus brought statewide and national attention to the liability crisis along the Texas-Mexico border and in South Texas. The Caucus launched highly successful press events, brought legislators from the interior of Texas to the border for mini-internships, lobbied their own lawmakers and provided expert testimony at public hearings. Their efforts were complimented by Lone Star State Medical Association, the Primary Care Coalition and the activism of our county and specialty organizations.

CWB: As far as uniqueness, your readers will have to decide for themselves, but our relationships with county and specialty societies is very compatible and we regard them as indispensable. Everyone was in early agreement that liability reform and prompt pay were the session’s number one and two priorities, respectfully. The organizations coordinated during the 24-month cycle on all aspects of advocacy, from political action to lobbying to policy development and communications. Not to say that this effort was perfect, because it wasn’t, but everybody was making their best effort to coordinate and work together. Our success is a testament to what our profession can achieve when everyone works together. I hope this is not unique to Texas, but I do believe our national organizations should take note.

What might be unique is the affiliated organizations in Texas representing physicians, and how their passion and enthusiasm strengthens us all. County medical societies along the Texas-Mexico Border, an area of the state that has been devastated by lawsuit abuse, banded together several years ago to form the Border Health Caucus. The Lone Star State Medical Association has focused on the liability crisis from the perspective of our African-American colleagues in Texas and their patients. The Texas Primary Care Coalition has brought a unique rural and inner city perspective to the legislature. These efforts were invaluable.

CWB: I’m not familiar enough with politics in Pennsylvania to even venture advice on strategy and tactics. Listen to your lobbyists, understand the strategy and don’t look back. What is exportable? A good research plan to establish your organization on the merits. Physician/spouse involvement at the community level. I strongly adhere to the old adage that all politics is local. Help every medical community understand the need for local involvement in legislative and congressional races. Create relationships with elected officials so you can have meaningful dialogue. TMA actually sponsors workshops to bring this message home. During the session, keep physicians in the capitol visiting with their individual representatives to remind them that the crisis must be resolved. Keep the medical community united, focused and engaged. Physicians want to help, were eager in Texas to volunteer, so give them leadership.

CWB: They’re all imperative, but if the medical profession doesn’t develop a strong grassroots network, it places unreasonable pressure on the medical lobby team. Why? In many of our recent legislative battles, trial lawyers and insurance companies have been able to hire numerous lobbyists, more than we could afford. But we’ve overcome the big money and big lobby names mainly with our in-house lobbyists and great grassroots. Legislators in Texas always have to go back home. Create the relationships at the local level, help the physicians with message and responsible policy options, and, at a minimum, you should expect to be at the table, and sometimes win a few.

CWB: Don’t even try to compete with the spending of the trial lawyers or get lured into that form of competition. Our political action program has evolved beyond contributions alone, primarily by providing physician and Alliance members with the tools they need to help candidates at the local level. This gets back to the philosophy of "all politics is local." Empower physicians and their spouses at the local level to create the long-term relationships. For example, TEXPAC might produce health care campaign brochures for office waiting rooms for specific candidates, wallet size slate cards for physicians to give to their patients, assistance with local fundraising to supplement TEXPAC contributions, newspaper ads signed by physicians immediately prior to the election, to cite a few examples.

CWB: Actually, quite a lot. We had to counter the negatives that were being used against reform. Our long-term relationships with the media paid off. We weren’t the new kid on the block. Also, we were timely with our releases, either proactively or reactively, and responding timely often led to another story or a reporter wanting to learn more about the issue. We kept the physicians out front with the media, and where possible we localized the spokesperson. All politics is local and so are communications with the media. We helped physicians with letters to the editor and guest editorials. We sponsored media training sessions and many of these physicians testified at committee hearings, acted as spokespersons, talked to Rotary Clubs, and the like.

CWB: We have both an overall message and targeted messages. The heart of the message is access and availability of health care. How a legislator comes to the conclusion that change is needed, and specifically that something like tort reform is the answer, can vary. Pro-business legislators might respond more to the notion that physicians are employers whose costs are rising and revenue streams are flat lined and declining. If the physician’s business closes, the patients go to the more expensive emergency department. Another legislator may come to the same conclusion, but from another direction.

CWB: Long term relationships are fundamental to long term success. The best approach is through the local medical community. It is important to develop relationships early in a politician’s career. It is equally important to understand that not all elected officials are going to vote with us on every issue. But we operate under the belief that there is another day and another task. We play for the long haul.

CWB: Coalition building is important in Texas, but it depends on the issue. For example, a coalition was extremely important to us during the managed care wars and in recent efforts to improve our public health programs. Regarding tort reform, we participated in coalition activities and they were helpful, primarily to counter coalition activities on the other side of the debate. It served more as a counter-balance. In the end, it was the access-to-care plight of our patients that carried the day.

CWB: The loyal opposition on liability reform in Texas always centers around the trial lawyers. They have a group of highly regarded lobbyists and they are tenacious. The truth is, for the most part, they lost the fight in the election cycle, pure and simple. They never really had the votes in either chamber. They attacked the insurance companies by saying tort reform would be an insurance industry windfall. They also claimed that skyrocketing liability insurance premiums were caused by investment losses and not underwriting losses. There were other claims too, like the non-economic damage cap would disproportionately hurt seniors, homemakers and children. The Texas State Board of Medical Examiners was attacked and the Institue of Medicine report was used as well. The medical discipline issues were countered with a bill, and $4 million worth of additional funding from physician license fees, to strengthen the Board. In the end, their arguments couldn’t hold up to the evidence of the need for tort reform to stop the hemorrhaging of the health care system in Texas.