I’m From The Government, And I’m Here To Help.

by J. David Kocurek, Ph.D.

President Ronald Reagan coined the title quote, describing the phrase as the most terrifying words in the English language. The quote may have been part tongue-incheek, but it also holds a strong element of truth that we have all observed when well meaning legislators or bureaucrats enact law and make policy to protect the public that ultimately defeats its own purpose.

Texas has become famous for its anti-littering slogan “Don’t Mess With Texas” which has evolved to the status of an unofficial state motto, but a more apt description for the current situation regarding Lyme disease in particular and the practice of medicine in general is that Texas is in a nightmare of a mess! By the way, ‘nightmare’ is not my preferred word choice. Recent reports from patients indicate that only one physician in the state with any Lyme experience is accepting new patients.

As important as the Lyme issue is to me, I now have the perspective that it’s only part of a growing problem in all of Texas healthcare, set in motion by a calamity of events that came together over the past four years.

In 2002 and 2003, reporter Doug Swanson wrote a series of articles in the Dallas Morning News that took the Texas State Board of Medical Examiners (at that time) to task for their lax disciplinary enforcement policy toward physicians that truly required intervention due to impairment or marginal competency.

The current Texas Medical Board (TMB) Executive Director, Donald W. Patrick, M.D., J.D., describes this event in his message on the board’s website, http://www.tmb.state.tx.us/message.php, “For many years, the Texas Medical Board had a reputation as a "good ol' boy" network of physicians protecting their own. The era of accountability hit this board right between the eyes in the form of a series by the Dallas Morning News in 2002, which got my attention, the attention of the board members, and the attention of the Legislature. We basically got an ultimatum that made us accountable, or else.”

The legislative pressure came from Representatives Ray Allen and Jim Pitts assisted by Austin attorney Joey Longley in his capacity as Director, Sunset Advisory Committee. Thus, a group of slipshod political appointees serving as the state’s medical board were transformed into a group of political appointee zealots searching out the least, most inconsequential transgression to prosecute. For the period since the board’s June meeting through the end of August, the TMB has taken a record of 99 disciplinary actions and run their budget into the red ink to do so.

While this transformation was being designed, another political hot button issue was brewing. There was a huge campaign to alert the public of the inability of physicians overall, but with emphasis in certain high-risk practice areas to obtain professional liability insurance. Examples of obstetricians and neurosurgeons limiting or even closing their practices were accompanied by stories of skyrocketing rates and insurers leaving the state. Patient quality of care and physician availability was pitted against the greed and excesses of trial lawyers. Plaintiff’s attorneys are evil if they are after you. They are champions if you need one.

Sure, there were litigation excesses. Med-mal attorneys, as they are informally known, made generous campaign contributions to the very judges in whose courts they litigated. Cases were filed in the counties, so called legal war zones, which were well known for sympathetic juries and excessive awards. This was a specific problem that could have been handled by targeted legislation and judicial ethics reforms. And, it wasn’t an issue isolated to medical cases. But, the attorneys made a perfect protagonist villain for the unfolding drama.

Supporting the leading characters in favor of malpractice reform were the Texas Medical Association, the largest state medical organization in the nation, and the liability insurance industry. If these two groups aren’t the most powerful lobbies in the state, they are very close to the top in the power they brandish with the state’s administrative branch and the legislature. The process moved swiftly producing the state’s 2003 health care liability reforms, which were sold in the interest of public access to affordable, safe healthcare with a media blitz that rivaled a national election. The final result was the passage of a constitutional amendment that placed caps on exemplary damages that could be awarded to plaintiffs with malpractice claims.

What was never described, to my recollection, is the connection between the increase in the TMB’s authority and liability reform. The punishment imposed by exemplary damages, removed by liability reform, was traded in the background negotiations for the increase in TMB power with the intent of maintaining balance. The problem that wasn’t considered is that the TMB doesn’t answer to anyone, especially the people of Texas, in anything resembling a timely manner.

Indeed, legislators and the Governor himself are prevented by law from any individual intervention in TMB activity. The only path to policy change is through legislative committee action leading to changes in law. That’s a time consuming process subject to influence by all the players described. To complicate the matter further, the Texas Occupations Code essentially not only enables the TMB, but the board’s rules, guidelines and the all important ‘community standards of care’ that are developed through board action.

The TMB has been made a super-agency without accountability when the lack of accountability of a poorly performing agency was the problem set out to be remedied. Let’s tally the winners and losers in all of this mess. The liability insurers loved the fruits of their efforts. Surveys show that rates have been reduced, but I challenge anyone to show that those rates reflect the monies saved by the reduced payouts due to litigation award caps. Physicians, other licensed caregivers and hospital organizations motivated by income thought they were given a free pass.

Plaintiff’s attorneys received an even worse reputation. Then the TMB went to work and the physician’s who thought they were protected didn’t know what hit them. Losing a court case can be chalked up as bad luck unless it becomes a habit, but disciplinary action by the TMB can quickly end a physician’s career.

And what impact has this had on the patient? I’ll speak for myself. I lost in-state access to Lyme treatment, cost for health insurance continues to spiral out of control, reflecting increasing industry charges, and most remarkably local physician fees and hospital costs immediately rose after the reform package took effect. What happened to the promised savings?

Good intentions and reactionary legislation hyped up more than a movie premier all add up to bad law, and that’s where our problems with Lyme disease in Texas now reside. Texans, if you don’t like the situation, contact your state senators and representatives and clearly express your concerns.