2025 Texas Legislature update

Brian Dittmar of TMLT and special guest Brian Jackson, Executive Director of the Texas Alliance for Patient Access (TAPA) discuss bills affecting Texas physicians that were introduced, passed, or defeated in the recently concluded 89^th Texas Legislature. (45:42)

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Transcript:

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Anthony Passalacqua:
Hello and welcome to this edition of Trends MD: Answers for Health Care's Digital Trends. I'm your host, Tony Passalacqua. Our topic today is 2025 legislative update, and our guests are Brian Dittmar, he's our Director of Government Relations, and Brian Jackson, he's the Executive Director of Texas Alliance for Patient Access (TAPA). Brian, can you tell us a little bit more about yourself?
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Brian Dittmar:
Thanks, Tony. Um, thanks for having us on today. I've been employed by TMLT for 32 years now, a little over 32 years, working in the claims department, primarily handling claims on behalf of, professional liability claims for physicians. There's been a lot of changes in the last three decades and, um, it's always an exciting time.
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Anthony Passalacqua:
Brian Jackson, he's the Executive Director for Texas Alliance for Patient Access. Can you tell us a little bit about yourself?
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Brian Jackson:
Uh, sure. I love being executive director of TAPA. Our organization is, is tasked with preserving the medical liability reforms that were passed back in 2003. But before I assumed that role, I spent more than 30 years as a medical malpractice defense attorney. So, I defended doctors, nurses, hospitals, nursing homes, and malpractice cases, which comes in handy when you're down at the capitol trying to explain what various changes to the law will do with regards to trials and jury verdicts and insurance rates and that type of thing. I really enjoy my work, love working with Brian Dittmar, TMLT. They're so helpful in our quest to try and preserve those liability reforms that have served Texas so well.
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Anthony Passalacqua:
Brian, what's one of the main things that we try to keep up with during each legislative session?
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Brian Dittmar:
Well, I think our primary goal is essentially to preserve the liability protections that were passed in 2003.

Prior to 2003 was a pretty rough time for doctors in Texas. I, I think between 1999 and 2002, thirteen of the seventeen physician liability insurance carriers went out of business or left the state of Texas. There was a real crisis. One in four doctors was being sued every year. Most of those claims had no merit, but they still required us to expend the money to defend the claims to, to have them dismissed. In 2002, TAPA was formed. That's an alliance. Brian Jackson, you can tell us a little bit about what TAPA is?
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Brian Jackson:
Sure. We have over 250 members of TAPA and it's the Texas Alliance of health care providers, and stakeholders in the delivery of health care in Texas. And what we recognize is that the scenario and the circumstances that Brian Dittmar described in 2002, they greatly impacted a patient's ability to get health care. You know, doctors' insurance rates went through the roof when they were having to defend all those cases. Hospitals had a 4 to 500% increase in their rates over a two-year- period. Nursing homes was worse in, uh, 2001. It cost about $300 per bed to insure a nursing home, and, by 2003 it was $3,000 a bed to insure a nursing home. So, doctors left the state. Doctors quit delivering babies. Doctors didn't want to cover the emergency room. Hospitals couldn't provide services. Nursing homes couldn't stay in business. Patients couldn't get health care. So, our organization was formed. We proudly have those 250 members who help us lobby at the legislature, take action in the Texas courts to preserve the reforms that ended up being passed in 2003. The situation was so dire that there was a true bipartisan effort. You don't see that anymore.

But back then we had a true bipartisan effort and reasonable medical bill. Medical liability reforms were passed so that plaintiffs could still get compensated for their damages. But we created some certainty in the insurance market, which ended up with a substantial reduction in rates. Since those reforms were passed, for example, insurance rates in New York for physicians have increased close to 70%.

In Texas, they've dropped 50%, and frankly, I could give you individual stories where they've dropped even more than that. So, it worked. It worked. We have more doctors than we've ever had. Our physician growth has outpaced our population growth. And Texas population growth has been phenomenal, but the physician growth has even outpaced that, and it's a result of those reforms.

And the insurance rates that are now in effect. You know, Florida is considered a conservative state, but they don't have the same reforms we do. They were declared unconstitutional. So, in Florida, an Ob-gyn in Miami pays $248,000 a year for medical malpractice insurance. If you're an Ob-gyn, that's a million dollars of coverage.

That same coverage in Texas costs less than $60,000. An internist in Houston pays $15,000 for a million-dollar policy. In Fort Lauderdale, they pay $60,000. Those types of rates discourage doctors from coming to your state. Fewer doctors means less access to care. And our organization, who celebrated the passage of those reforms, and then fights every single day to try and keep them intact.

Brian Dittmar:
Maybe we talk a little bit about what those reforms were. The overall reform that has done the most, I think, to create predictability for the insurance market is our cap on non-economic damages. There is a difference. Many people think that this is just a cap on amount you can collect in a lawsuit, and that's very much not true. There is a cap of $250,000 for non-economic damages, which includes pain and suffering. What else? Uh, disfigurement?

Brian Jackson:
Oh yeah, disfigurement, loss, all of those things.

Brian Dittmar:
Anything you can't really put a price tag on. But more than that, there's not just one $250,000 cap, there's three caps that can be collected by any one plaintiff.

And so essentially there is a, a sum of $750,000 in non-economic damages that is recoverable in a medical negligence lawsuit. There are no caps on economic damages and what economic damages are: medical expenses, both past and anticipated future medical expenses, lost wages, both past lost wages and again anticipated future lost wages, loss of earning capacity, loss of Household services.

So again, these are all damages that can be recovered without any caps in a lawsuit in Texas. Another important provision of the liability protections is the requirement that awards for past medical expenses are paid on what was actually paid for those expenses versus what was billed -- the paid and incurred rule.

We can talk a little bit more about that because that was a kind of a big issue this past session. Expert reports, we passed reform s that require that allegations against a physician be supported by an expert witness that practices in the same or similarly practice. There are heightened liability questions for providers of emergency care, I guess, heightened standards of negligence. In other words, emergency providers have to provide care most of the time without any past knowledge of the patient and in a very limited amount of time. So, there is a heightened burden of proof that plaintiffs must reach to recover in an emergency care case. Those are the big ones, I think.

Brian Jackson:
Yeah, I think, I think they had the most impact for sure. And, and, and some of those important parts are, yes, non-economic damages are capped at $750,000; that's three $250,000 bucket s. So, all the doctors share a $250,000 bucket. Then the hospital has a $250,000 bucket, and, if the patient was transferred to a second facility or hospital, they have a separate $250,000 bucket.

So, in most of my cases over the years, they would sue the doctor and the hospital, and it'd be a $500,000 cap on those non-economic damages. Some would end up getting transferred from one hospital to another. So, everybody would get sued and then it would go up to 750. But importantly, we still have $10 million cases in Texas because you can recover every penny of your economic damages - past medicals, future medicals, like you explained. I also tell people if you used to mow your yard and you can't mow your yard anymore, and you've got to pay somebody 50 bucks a week to mow your yard, you can recover that in a medical malpractice lawsuit. All of your economic damages are recoverable. The reality is, is that non-economic damages, pain and suffering, things like that, it's hard to quantify. And so that's why the legislature tried to come up with a reasonable number that would still compensate plaintiffs but creates some certainty in the insurance market. You know, if you have a hundred million dollars pain and suffering verdict like they do in Florida right now, every month they have that in Florida, you can't sit down and come up with a formula to try and underwrite that, and so insurance premiums go through the roof.

Creating that certainty allowed insurance companies in Texas, to then underwrite physicians at a more fair and reasonable rate. And, and it served us well. You know, for sure, same thing. I'm glad you mentioned the ER. Because a doctor and a nurse in the ER, they get a patient in a car wreck, they're unconscious. They're making life and death decisions with seconds to decide what to do or not do.

They've got no medical history. They don't know what medications the patient is taking. They can't talk to 'em, and they do the best they can. And under the old rules, two, three years later, some expert from out of state would come in and say, "Well actually, if they would've considered doing this, we might have had a difference." And Texas now says, "You know what? The standard for an ER doctor or an ER nurse or a hospital to be liable is: were they willful and wanting? You know, did they, did they do their best?" And if they did their best, they're not liable because they were faced with a very, very difficult situation, and that's what the law should be. And it served Texas as well. I'll tell you this, we had no doctors willing to cover the emergency room in 2002. Hospitals could not staff the emergency rooms. The change in that law has created, uh, enough physicians so that we can staff our emergency rooms now.

Anthony Passalacqua:
So, for the, uh, 2025, it was 89, isn't it? The 89th legislative session.

Brian Jackson:
Well, you know, that's it. It, it is the 89th Texas legislature. There's always more sessions because they can call special sessions here or there yonder Yeah. So, but a lot of people will say the 89th session, but it was the 89th Texas legislature. Our legislature meets every other year. The great wisdom of our founding fathers in Texas said, you can't come every year. Thank goodness. And you can only do so much damage every other year. Uh, and so in odd numbered years, our legislature meets for 140 days. And, um, this was the 89th time that our legislature met for a regular session for those 140 days

Anthony Passalacqua:
During this legislative session, what were some of the main bills that we were looking at that were very interesting to both parties here?

Brian Dittmar:
Well, the one that we've seen every session for at least the last four sessions now has been an effort to increase that non-economic damages cap that we've talked about. This session, there was an effort to add an inflation index to the cap that was, would have been effective retroactively, which if passed that would've increased the cap immediately from 250,000 / 750,000 to 431,000 /1 something. I don't know the math there. So, um, fortunately, uh, again, that was a bill that did not progress out of committee. It was a little bit different this year in that the bill this year was sponsored by a Republican and years past that, that's always been a democratic effort.

Brian Jackson:
So, we managed to kill that bill. However, with two Republicans sponsoring it, you know, we have to start preparing now for 2027 because I, I fear that that we'll be right back where we were this year in trying to explain that it's not good for Texas patients to adjust non-economic damages by an economic indicator. It doesn't make sense, but that's what we seem to face every session now.

Brian Dittmar:
I, I think it's also fair to say that this session, we did not see a lot of the attacks we've seen in previous sessions on liability protections specific to health care providers. Uh, and I think the reason for that is that frankly, the trial lawyers were playing a little bit of defense this session. Lieutenant Governor Dan Patrick, one of his legislative priorities was the curbing nuclear verdicts bill. Um, you know, we've all heard the news about these, you know, gigantic verdicts, that have become more and more frequent all around the country, including in Texas.

There are no caps on non-economic damages that apply to the auto liability or the trucking industry, anything like that. So, the trucking industry did pursue liability protections of their own. And they filed Senate Bill 30. Unfortunately, it was, well, unfortunately for the trucking industry, it was not a successful effort. It was one of the very few legislative priorities that were described earlier by both Governor Abbott and Lieutenant Governor Patrick, that that did not pass.

In other words, most of their legislative priorities did pass this session, but this, that was one that did not. But the plaintiffs, again, were playing a little bit of defense this session on that. It, it was a long, complicated bill that essentially attempted to redefine how damages are awarded in a civil lawsuit.

Brian, you can tell us a little bit about how that all progressed. I mean, it started off with that.

Anthony Passalacqua:
Well, real quick, before we, we jump into that, just for any of our listeners out there, they may not be aware of what a "nuclear verdict" is. Can someone just give me a quick definition on that?

Brian Jackson:
I guess a big explosion, explosive verdict. You know, they, they didn't really find it something is anything around it, but it, it's those $100 million. It, it's the ones you read about on the billboards, $100 million verdicts and those huge verdicts. Those are nuclear verdicts and, the concerning thing is, it's where we were medically back in 2002.

You might have a plaintiff with damages in the six-figure range. And then get $100 million in a verdict. And that's a nuclear verdict. You can't underwrite that; you can't charge a premium to allow for that. And the trucking industry especially has really been decimated by these verdicts, and they need some relief.

And they looked at health care. They looked at what we did, and they said, we, we want something similar because we want to be as successful as health care has been. Unfortunately, they didn't get Senator Schwertner to file it. Representative Bonnen and the House sponsored it on the House side; passed out of the Senate, unchanged.

Got to the House and they started chipping away at it, and it made it all the way to the House floor. It finally passed on the House floor. It was so watered down and different than the Senate bill that then they had to go back to the Senate and say, "Will you accept these changes that were made in the House?"

And the Senate said, "No, you've watered it down too much." And, and so they got no relief, uh, at all. But, um, they definitely need some help. The way these nuclear verdicts work, pain and suffering is a big part of it. The other part of it is that paid and incurred that we have in medical cases, uh, really gets manipulated in trucking cases.

Brian Dittmar:
That's with respect to past medical expenses.

Brian Jackson:
Past medical expenses. And so, plaintiff's lawyer has a relationship with a physician or a chiropractor or a physical therapist, and they send their client, say, they say, "Don't, don't claim this on Blue Cross. If you've got Blue Cross, just keep that in your pocket. Go to my doctor and that doctor will turn a $10,000 medical bill into a $100,000 charge." And then when the lawsuit is filed, the jury gets presented with evidence that the plaintiff has a $100,000 in medical bills and it's only $10,000, or they'll turn a $50,000 medical bill into $500,000 in charges that are incurred. And so, they're recoverable. Senate Bill 30 attempted to address that by saying, hey, reasonable medical bills ought to only be triple what Medicare would pay. Or if you have a relationship with a lawyer, if a lawyer has sent you 10 clients, then you ought to tell the jury, yeah, this is the 10th time that attorney so-and-so, with all those billboards on the highway, has sent me his client and this is what I normally get paid for these services, but this is how much I charge this time.

That was all in the bill. And, the trial lawyers, you know, concentrating on that bill, because that's a very lucrative practice for them. They did ignore health care liability, but they managed to defeat what would've been significant reforms for the trucking industry and all other civil cases other than medical cases.

Brian Dittmar:
And also, getting back to your question, Tony, about nuclear verdicts, I think it's important to emphasize again that, in a civil lawsuit, plaintiffs are entitled to recover compensatory damages, meaning those damages that compensate them for their loss, not damages that reward them. Or if there are extenuating circumstances, there are elements of punitive damages that can be awarded also. But we're talking compensatory damages that are being involved in these nuclear lawsuits. And by any stretch of the imagination, a $100 million is not reasonable compensation for somebody's loss, somebody's injury in a (unintelligible).

Anthony Passalacqua:
Well, what other legislation or bills were interesting this session?

Brian Dittmar:
There, there were some more technical issues. There was a lawsuit filed against a doctor in South Texas wherein the plaintiffs also wanted that doctor's employer to be responsible for the injuries that arose, allegedly arose, out of that doctor's care and treatment. A Supreme Court case was filed.

The employer was asserting that because they were a nonprofit entity owned by physicians, that the corporate practice of medicine statute would prevent that entity from being vicariously liable for the acts or care being provided by the individual physician. Court case on that, also a bill filed by that.

Neither one of those passed this session. That was one that we sort of sat on the sidelines on because some people might think that the relief being requested by the employing entity was a bit of an overreach. Yeah. I think it's established case law that employers should be responsible for injuries caused by their employees. I used to tell doctors in the claims world that if you were driving down the road and a Coca-Cola truck ran a stop sign and injured you, you didn't sue the driver of the Coca-Cola truck. You sued Coca-Cola. So, the same theory applies here, that that was something that we monitored, but didn't get too involved in.

Brian Jackson:
Yeah, it was, it was a complicated issue. Texas Medical Association on behalf of the physicians opposed that bill because they said, this is bad for doctors. They're going to be left on an island all alone. The employer is billing and collecting and profiting off the doctor. But the doctor doesn't have any support from the employer if they get sued. At the same time, organizations that employ physicians, they very much wanted that bill to pass. And so, we did, TAPA, stayed on the sidelines of that bill as well.

The Lugo case was the Supreme Court case that Brian Dittmar was referring to, and the opinion was issued and the Supreme Court said it isn't automatic the employer of a physician is liable. You have to show whether or not the employer controlled any part of the physician's treatment of the patient. Because physicians that are employed, the employer can't tell them how to treat the patient. That's Texas law, the corporate practice of medicine. But the employer might tell them, well, we have these protocols. You know, we have these treatment policies that we want you to follow. For example, if it's a snake bite case, you have this much time to administer the anti-venom and you should test three times to do this. And this is our protocol. So, if protocols were involved, the employer would still be liable. If the doctor on his own said, "Take two Advil," and the patient was allergic to Advil and there wasn't any protocol about Advil, then the employer might not be liable. So, it's going to be a fact-by-fact basis going forward. I think both sides kind of declared victory. We'll have to see how the courts decide each individual case going forward to see how that. So, I, we were happy to sit on the sidelines on that one because some of our members support it and some of our members vehemently opposed it.

Brian Dittmar:
You know, there was another bill that we did engage on, and we did defeat this session, which was good. This was House Bill 4327, which sought to expand the list of statutory beneficiaries in a wrongful death claim. Currently, if a person dies as a result of medical negligence, the patient's parents and their children and their spouse are all entitled to bring a lawsuit for their own loss resulting from the death of that person. This bill sought to expand those to include siblings. So that that was a bill that, again, was being pursued that would've increased claim payouts in a wrongful death claim that fortunately did not pass this session well.

Brian Jackson:
Surprisingly to me, it got voted out of committee favorably and I didn't think it would, and then it actually passed the House floor. And so, the House passed it and it went over to the Senate, and then that's where we managed to kill it, was in the Senate. It never got out of committee in the Senate. But you know, anytime you add the number of plaintiffs, then you're adding the number of blank lines that the jury is filling in, in a case. And so that's just going to make verdicts go up and, and I'm sure there are siblings that, that are genuinely heartbroken. When they lose someone. But what we were going to create is just these siblings coming from everywhere in addition to children, in addition to parents. I mean, it just was really, and remember the estate of the person can, can always sue as well. So, you know, if someone had no parents and had no children, their estate can still sue. The siblings are part of the estate. And there were ways that that was already included in the law. But this was going to make it worse. It surprised me it made it as far as it did. Honestly, in February, March, I wasn't too worried about that bill, and I was, I was a little concerned in April.

I was happy that we killed it in May. Because it would have increased insurance rates. For everyone in Texas, doctors, trucking companies, and frankly consumers, because it would've allowed larger verdicts than currently exist for people that I'm not so sure really should have a standing to sue.

Brian Dittmar:
Another bill that did not progress this session that we were glad did not was House Bill 2446, which is a bit of a technical thing about how damages are presented in lawsuits. I'm going to let Brian Jackson, he's the lawyer here, I'll let him explain the procedural things that that bill attempted.

Brian Jackson:
Yeah, and what the bill stated was that the current law in Texas is if you claim past medical bills as part of your damages in a lawsuit, well, you have to produce evidence, generally in the form of an affidavit, that you incurred that medical bill. That the medical bill was reasonable for the services rendered and that the medical services were necessary to treat your injuries. You have to prove those three things. And so, he came up with a bill last time and this time too that said, if the amount of the medical bills is less than $50,000, you no longer have to prove they were reasonable or necessary.

You don't have to file that affidavit. And so, basically every case in Texas was going to have at least, it was going to have $49,999 in medical bills because they weren't going to have to provide any evidence for it. That bill was heard in committee. But when we pointed that out, because TAPA opposed that bill, in the committee representative Dutton said, "That's not what I'm intending. I will revise it to state. that there still has to be evidence of reasonable and necessary." And so once he did that, I wasn't as concerned about it because that's what the law already is anyway. It actually passed out of committee. But it never got off the House floor. Never got a vote on the House floor. You know, that's one that we defeated, but we defeated it early in committee by having the bill’s author, Representative Dutton, amend it to the point where it was no longer as detrimental as it was when he first filed it.

Brian Dittmar:
I've got three more bills on my list that we can talk about that would've been good for health care providers but did not progress this session.

The first as Senate Bill 3025, which sought mandatory disclosure of third-party litigation financing agreements. There is a newish industry across the United States wherein folks, the venture capital folks, are coming in and funding lawsuits on behalf of plaintiffs with the expectation that they will be repaid at attractive rates of return from the recovery of those lawsuits.

The concern is that these third-party litigation funders will demand control of the outcome of these lawsuits. Meaning, somebody that might file a lawsuit and might receive a reasonable settlement offer in that lawsuit, that would take care of the injured party, would not be allowed to accept that settlement because the third-party litigation funder might want a higher rate of return on that. So, there was an effort to at least require some disclosure of. That did not progress this session.

There was an effort to add freestanding emergency medical care facility to the list of locations where claims arising out of emergency care are subject to the will and wanton standard negligence that we talked about earlier. That really just adds a little clarity to some locations where emergency care can be provided. That unfortunately did not progress.

There was an effort to create immunity from criminal liability for certain health care providers that didn't progress. You may remember the news, I guess a year or two ago, there was a nurse in Tennessee I think that inadvertently gave an injection that caused a poor outcome for her patient. She was charged with a criminal, with a crime essentially, and faced jail time just because of that inadvertent medical mistake. There was a bill that said that, you know, if it's just a medical error, then there should be no criminal liability attached to that unfortunately didn't address.

Brian Jackson:
Yeah, those were, those would've been good. But we did defeat a couple of others that I wanted to mention. One of them was House Bill, 2072. And this bill had to do with advanced directives. And I think for physicians, this was really a critical bill. This bill would have altered current law as to advanced directives.

Basically, right now, if a patient has a DNR and the physician follows the DNR, the nurse follows the DNR, and they make a mistake, then the physician and the nurse can get sued, for medical negligence. And I've defended a lot of those cases over the years.

Brian Dittmar:
Brian, for the folks listening here, DNRs do not resuscitate.

Brian Jackson:
Do not resuscitate. Exactly. Like an advanced directive to the physician, right. Thank you. This bill would've changed that law to say, oh, first there's no statute of limitations. So right now, we've got a two-year statute of limitations on medical negligence. It can be extended by 75 days if you send a notice letter, but there would be no statute of limitations, which means 10 years later some relative could file a lawsuit.

You know, who would've remembered the incident? What would've happened to the incident? What happened to the evidence? Were the medical records still available? Because they can be destroyed after a person dies after a certain amount of time. So, eliminating the statute of limitations was a terrible idea.

On top of that, it was going to remove that non-economic damages cap, eliminate it completely. So, 10 years after the fact, some great, great grandson of someone could come in and decide to file a lawsuit. The medical bills are destroyed; the doctor may be deceased. Maybe suing the doctor's estate, and then there's no cap on damages.

You could have a $100 million recovery against that physician. Which means the physician, maybe the physician's estate, you've got to purchase tail insurance forever. You can't retire and quit paying tail insurance if you ever treated a patient who had a DNR. So, it was going to be very expensive.

Then I would always kind of jokingly tell doctors when I was explaining how important it was to kill this bill. Don't really worry about all of that because the last part of the bill made it a first-degree felony if you made a mistake. So, you were going to be in jail anyway, and you didn't really have to worry about the $100 million verdict. It was going to get issued 10 years later and the all the tail coverage you were going to have to pay premiums for, it was just a bad bill - first degree felony, no statute of limitations, and no cap on damages. So, we were very pleased to defeat that bill. I think it would've had a financial impact on physicians and would've really created a problem for anyone working in the emergency room, nursing home, or any patient that had that DNR, that do not resuscitate. So, we were pleased to defeat that bill.

There was another bill, Senate Bill 2516. It had a House companion, by Representative Schofield out of Houston. And we've always had a good relationship with Representative Schofield. That bill would've eliminated an interlocutory appeal right that physicians have if they are an employee of a governmental entity. If you work for a medical school, you're a medical resident, you work for a county hospital, a hospital district, you have special protections. And if the trial court fails to give you those protections, you can immediately appeal the denial of those protections.

You don't have to wait till the cases is over. That saves time, money, expense, and disposes of a lot of cases. This bill would've eliminated that appeal. They weren't trying to pick on doctors, and they were worried about some other civil servants in urban areas, but it was going to impact doctors.

We were very happy to defeat that bill. Once we explained what it would do to Texas doctors, Representative Schofield took that bill down and said, "That's not what I'm intending to do." So, we were really pleased to defeat that one as well.

And lastly, Senate Bill 95, and that bill would've created significant damages including attorney's fees for parents whose child received a vaccine that they didn't intend for their child to receive.

And, that bill would've cost everyone a lot of money. It also required you to give the parents of every child who received a vaccine this kind of state created information on vaccines. If you didn't give it to them, you were going to be liable. So, lots of lawsuits were going to result from that. So, we were pleased to defeat that bill as well. It was just going to be burdensome and financially detrimental to doctors.

Brian Dittmar:
You know that that bill reminds me that, it seems to be in the last couple of sessions, a there is more of a willingness to pass laws that create civil causes of action against health care providers. In other words, they are tending to want to use these civil lawsuits as an enforcement mechanism, for some of these laws that might control vaccinations or that sort of thing.

Brian Jackson:
Exactly. We have seen that last session and this session. Last session, we defeated a bill that would have created a cause of action with an automatic recovery of at least $5,000 plus attorney's fees, even if you had no damages. If you received a vaccine and didn't really want it, you could have signed a consent. You know, "Give me this vaccine," and then later said, "Oh, uh, I only got it because my employer made me. And I didn't really want it." And you could sue and, and you would automatically win at least those damages plus attorney fees.

And I think, Brian Dittmar, you're onto something in that, in a quest to try and eliminate mandatory vaccines, eliminate mandatory mask, eliminate things of that nature, there are legislators who file bills that would create liability for the people who administer them or require them. And so, in hopes that then they just won't give the vaccine. You couldn't find anyone to give the vaccine. So, that's something we're going to have to really watch against.

When Brian Dittmar and I started doing this, you know, 30 years ago, you could count on one hand the number of bills filed at the legislature that would create causes of action, and now there are hundreds every session filed.

We've had a real shift. Texas may have become a more conservative state. But not when it comes to lawsuits and recovery of lawsuits. Hundreds of bills are filed every session that create more causes of action, more way to sue health care providers and other people. So that's something that we're battling every year down at the Capitol.

Brian Dittmar:
You know, there's one more bill that, Brian, I don't think was even on your watch list that, gave me a little bit of a kick that actually passed this session was a bill that creates liability, civil liability, immunity for ringside physicians.

Brian Jackson:
There were over 9,000 bills filed in the 89th Texas legislature. Of those 9,000 bills, we monitored close to 200. The ones we mentioned were the most important ones. We could have a two-week podcast going through every single bill. But I think that we've hit the highlights and the ones that, that certainly where we had to focus most of our attention.

Brian Dittmar:
That there was one more bill that we watched at TMLT, doesn't really affect civil liability for physicians which means it's a little outside of TAPA's area of view. But this was House Bill 3969 filed by Charlie Gerin. And this is the third session in a row I think this bill been filed. And what it does is, it requires insurance carriers to provide to a third-party claimant outside of litigation, just really upon any, you know, I'm going to assert a claim against you, and so therefore I want a copy of your insurance policy showing your limits, as well as any potential coverage defenses.

We have simply felt that, you know, an insurance policy is a private contract between the carrier and the insured. And that a third party who walks in off the street and says, " I'm going to try to file a claim; I need your insurance," should not be entitled to that outside the context of litigation. We were calling this the gold detector bill or the metal detector bill, because the reality is that most medical negligence lawsuits are not predetermined liability. They're not open and shut cases on liability. There are, there's contested liability on almost every case, and so many plaintiff attorneys will tailor the allegations in their lawsuit. To target the people who have the deepest pocket that have the most to recover. And so, if we are allowed to provide policy limits to a claimant attorney before they ever file their lawsuit, that just creates this type of litigation that is more based on fiction than reality. So that that was another bill that we were glad did not progress this session.

Brian Jackson:
Yeah, it's just a fishing expedition. And I promise you, if you have a nurse working at a hospital whose name is in the chart, but really provided no care to the patient, and they went out and purchased their own $2 million policy, if they produced that, they'd be front and center in the lawsuit.

Same with any physician. You know, if one physician has a $100,000 - $300,000 policy and another one has a $1 million - $3 million policy, guess who's getting sued. So, sue the people that you think were negligent, and then in the discovery process, those things, you know, then come out. But I'm glad that TMLT was successful in helping defeat that bill, because it's nothing but a fishing expedition for sure.

Brian Dittmar:
Uh, there were a couple of other bills that were passed that don't, again, directly impact medical liability, but they do impact our clients, our customers. And so, we were kind of keeping an eye on them. There was two bills passed that affect the production and maintenance of medical records. Essentially, when medical records, test results can be produced, essentially before sensitive test results are produced on a patient portal, they would like to have doctors have a chance to review those results before the patient is made aware that that did pass. There was a, a bill that amends the restrictions on non-compete agreements important to many physicians.

There was a bill that requires physician supervision at med spas that provide IV therapy. Again, a safety matter that I think is important. And then there were several scope of practice bills that most physicians are very interested in. Really, I think the only one that managed to progress was one that expands the scope of practice for physical therapists.

Brian Jackson:
Yeah, I think, mentioning that, uh, covenant not to compete physician bill, that's an interesting bill. We're still really trying to figure out what it says, but we do know this. After September 1st, 2025, any physician contract that is entered into or renewed the covenant not to compete, is restricted to five miles in one year.

What we don't know really involves existing covenants not to compete. If you already have a, if you're a physician, you already have a contract and you have a covenant not to compete that is larger than five miles in one year, the statute left intact language from 10 years ago that said, we're grandfathering in old contracts.

So, does that grandfather clause apply to the new amendments to the statute, or does it apply to the old ones? I think it probably applies to the new ones. I don't wear a black robe, but I do know if you're a physician and you delay renewing your contract until September 1st, you're covenant not to compete can be, it can be more than five miles or one year.

If you sign it August 31st, it can be 50 miles in three years. So that's something physicians might want to talk to their lawyer about and pay attention to if you're about to enter into a new contract. If your contract has an evergreen clause? If it's a two-year contract and it renews every two years when it renews? If it renews after September 1st, that covenant not to compete has to be limited to five miles in one year.

Brian Dittmar:
Tony, there is one more bill that I, I think I forgot to mention earlier that I thought was important that we talk about here and this is Senate Bill 268. It affects the Texas Medical Board essentially, or it affects all licensing boards. It requires a health care licensing board to refer a complaint that involves a practitioner who's not licensed under that board to the appropriate licensing board for investigation of possible discipline.

And it also prohibits a health care licensing board from disciplining a practitioner who is licensed by another board. Doesn't sound like it's a big deal. Proponents say having a health care provider be accountable to multiple licensing boards just adds confusion. And, you know, physicians should be accountable to the Texas Medical Board, chiropractors, to the chiropractic board, et cetera, et cetera. That passed both Houses, is awaiting signature by the governor. However, Texas Medical Association is urging its members to veto that law, asking Governor Abbott to veto that law. And the reasoning behind that is, is that if the Texas Medical Board becomes aware of, say, a mid-level or a nurse that is actually practicing medicine, that is doing something outside the scope of their practice, currently the Texas Medical Board can issue a cease-and-desist order and enforce that order against this non-physician. The argument is, is that taking away the ability of the Texas Medical Board to issue these cease-and-desist orders and to act quickly is a patient safety issue.

And so that's the TMA is urging Governor Abbott to veto this legislation.

Brian Jackson:
Yeah, it was a fight really between the nurses and the doctors and, and the advanced practice nurses feeling like the Texas Medical Board was somewhat unfair to them, judge them, you know, by certain standards that shouldn't have applied.

And if their conduct is going to be evaluated, that it should be evaluated by the nursing board. Whereas, as Brian Dittmar explained, the medical board, and the physician say, we, we don't want mid-levels, we don't want nurse practitioners exceeding their scope of practice, the medical board should be able to go in and, and if they're practicing beyond their scope, the medical board ought to be able to immediately stop them from doing that. So, the nurses said, let the nursing board supervise nurses and the medical board and Texas Medical Association still want some ability to intervene if they feel like an advanced practice nurse is doing something that only a physician should do.

Brian Dittmar:
I think that's most of the bills on our major watch list. I think we all had hundreds of bills on a minor watch list that we're keeping an eye on.

Brian Jackson:
I guess in summary, I would say, honestly, I felt like health care faced significant headwinds this session. I think that the new Republicans that elected are distrustful of government, somewhat distrustful of health care, kind of leftover from vaccines and masks and the abortion issues and some of those things. So, I was really pleased that we came out of the session the way we did. In spite of encountering those headwinds, we defeated every single bill that would've eroded the medical liability reforms passed in 2003. We defeated all those bills. And so, I also think physicians and hospitals did well in the session with regards to reimbursement, Medicare, Medicaid. Especially rural areas, rural doctors and, and rural hospitals - I think got some additional funding.

Now, we'll see what happens in Washington DC as they go through Medicaid and Medicare there. But I think all of the teams, TMLT, certainly Brian Dittmar, Texas Hospital Association, Texas Medical Association, TORCH: the Texas Organization of Rural and County Hospitals, TOMA, TCEP: the Texas College of Emergency Physicians. Everyone worked together, and I think we overcame those headwinds, and we really had a successful session. We're going to enjoy it for about two more days and then start getting ready for 2027.

Anthony Passalacqua:
Thank you for listening to our podcast. If you're a policyholder, please feel free to contact us with any questions by calling 1-800-580-8658 or check out our resources at tmlt.org.

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