Attorney: Tort reform working in Mississippi

Jessica M. Karmasek Jul. 25, 2011, 2:39pm


WASHINGTON (Legal Newsline) - Tort reform in Mississippi has brought about a substantial improvement in the state's medical liability environment, according to a recent medical journal article.

The article, published in the August edition of the Journal of the American College of Obstetricians and Gynecologists, was written by Mark A. Behrens. Behrens, of Washington, D.C., law firm Shook, Hardy & Bacon LLP, also serves as counsel for the American Tort Reform Association.

Behrens' article looks at the impact of tort reform in Mississippi on physicians insured by the Medical Assurance Company of Mississippi. MACM is the leading medical liability insurer in the state.

Mississippi, once known as the "lawsuit capitol of the world," enacted a comprehensive tort reform in 2004.

The 2004 reform included several laws that strengthened and went beyond those enacted in 2002.

In late 2002, a special session of the Mississippi Legislature passed legislation, House Bill 2, which made important changes to the state's medical liability laws. It placed a $500,000 limit on noneconomic damages, such as pain and suffering, applicable to most medical negligence cases. It also generally required medical malpractice plaintiffs' attorneys to consult with an expert before filing suit.

In addition, HB 2 required plaintiffs to give defendants 60 days written notice before commencing a medical liability lawsuit; abolished joint liability for noneconomic damages for any defendant found to be less than 30 percent at fault; and provided heightened pleading requirements for cases involving medical professionals who prescribe prescription drugs.

During the same special session, the Legislature enacted HB 19. Among other things, the bill required lawyers to file lawsuits in counties with some relationship to the facts of the case; provided for modest caps on punitive damages; prevented duplicative recovery of "hedonic" or lost enjoyment of life damages; limited advertising by out-of-state attorneys; and authorized a small penalty for frivolous pleadings.

In June 2004 -- during another special session -- the Legislature enacted a more comprehensive civil justice reform bill, HB 13.

HB 13 created a hard limit of $500,000 on noneconomic damages in medical liability cases, removing exceptions found in the 2002 law and scheduled increases to the cap.

The legislation also provided that a medical negligence suit against a licensed health care provider shall be brought in the county in which the alleged act or omission occurred, and venue must be proper as to each plaintiff.

In addition, the legislation limited punitive damages that may be awarded against medium and small businesses; abolished joint liability for all defendants; provided innocent product sellers with greater protection against being pulled into lawsuits directed at manufacturers; and limited noneconomic damages for civil defendants (other than health care liability defendants) at $1 million, keeping in place the $500,000 limit for medical liability actions.

According to the Institute for Legal Reform, the 2004 tort reform package led to "measurable improvements."

"These reforms helped pull the state out of a medical liability crisis, whereby high premiums and an exodus of insurers had led physicians to leave the state, causing shortages in critical medical services. In fact, the state's tort reforms have lowered medical liability premiums by as much as 60 percent and reduced medical liability claims 91 percent from their peak," the institute said in its Lawsuit Climate 2010 report.

In its report, ILR still ranked Mississippi near the bottom of its survey, saying it remains difficult for defendants due to the state's plaintiff-friendly judges and juries. The institute, an affiliate of the U.S. Chamber of Commerce, owns Legal Newsline.

In Behrens' article, data regarding lawsuits against physicians insured by MACM and MACM-insured ob-gyns in particular, were compared by year from 1986 to 2010. The data encompassed the periods before and after the implementation of the state's tort reform legislation. In addition, MACM medical liability premiums were compared by year from 2000 to 2010.

Behrens found that the number of tort lawsuits against MACM-insured physicians, especially ob-gyns, has fallen dramatically.

"During the five-year period (2000-2004) leading up to and including the implementation of tort reform, MACM-insured ob-gyns experienced an average of 44 lawsuits per year, with the pre-tort reform years accounting for most of the lawsuits. In the five-year period (2005-2009) after the implementation of tort reform, MACM-insured ob-gyns experienced a sharp drop in lawsuits, annually averaging almost 15 lawsuits," he wrote.

The data, Behrens says, does not establish the extent to which any particular aspect of the reform may be credited with improving the state's medical liability climate; however, he believes the $500,000 limit on noneconomic damages was the most significant.

"It is noteworthy that the number of MACM-insured physicians increased in Mississippi after the implementation of tort reform. The data is consistent with studies finding that statutory limits on noneconomic damages have a positive effect on where physicians locate their practices," he wrote.

"More physicians practicing in the state presumably would be associated with more lawsuits in the absence of tort reform, not fewer."

Medical liability insurance premiums also have been reduced and refunded, Behrens found.

"From 2000 to 2004, MACM insurance premiums escalated 98 percent, reflecting the frequency and cost of medical liability litigation in Mississippi before the passage of tort reform. By late 2004, the problems in malpractice insurance seem to have abated," he wrote.

"Doctors covered by MACM did not receive an increase in premiums in 2005. Premiums were reduced, and refunds were given each year from 2006 to 2010."

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