Torts 101: They’re Not for Dessert

Chocolate tortes might be a favorite dessert of some readers of this article.

But “torts” is almost certainly not the favorite topic for any.

Many non-lawyers have only the vaguest notion of what a “tort” even is. To suggest a short definition, a tort is a civil wrong, other than by contract, by which a party is injured or damaged in some way.

Without going through hundreds of years of English common law and American jurisprudential history, one helpful way to better understand tort law is to itemize the legal requirements for a person seeking to recover money damages from another for a tort committed. In order to successfully prevail in a civil action – a lawsuit – based on a tort, one must prove that:

1. A legal duty, such as a medical standard of care, was owed by the defendant to the plaintiff;

2. The defendant breached the duty owed;

3. The plaintiff suffered injury or other damages; and

4. The plaintiff’s damages were actually caused by the defendant’s breach of duty.

For most of our state’s history, Mississippi could not be described accurately as a hotbed of tort litigation. With the rarest of exceptions, high dollar jury verdicts or agreed settlements were not the order of the day in the courthouses around our state.¹

But beginning in the 1980s, thousands of individual plaintiffs, first the workers in the shipbuilding industry on the Mississippi Gulf Coast and then those in other industries, were being grouped together in lawsuits filed in the state against asbestos manufacturers. Large judgments were being awarded after trials in some cases, leading to large settlements in other cases. Then, in the late 1990s, the State of Mississippi itself took on the nation’s tobacco industry, resulting in enormous settlements being paid to the State.

In 1998, a Holmes County jury returned a verdict of $145 million against Ford Motor Company, and the next year, the manufacturer of the diet drug fen-phen was hit with verdicts totaling $150 million awarded to five plaintiffs.

According to the Clarion-Ledger, prior to 1995, no verdict in the state had exceeded $9 million. But between 1995 and 2001, at least 19 verdicts, totaling more than $2 billion, had surpassed that level.² Mississippi had earned for itself a reputation of being where a person could get rich in the courtroom. And many attorneys got quite rich in the process.

The fallout for healthcare providers around the state was significant and significantly bad. The social and legal environment that grew out of the lucrative tort litigation in products cases^[1] led to an increase of professional liability actions – commonly known as “medical malpractice” cases – against healthcare providers and facilities.

And one very predictable business result of all of these developments was an upheaval in the liability insurance markets, including malpractice insurance, so much so that some insurers stopped writing professional or general liability policies in Mississippi altogether. Many others demanded increasingly higher premiums for their policies as the litigation environment in Mississippi grew more volatile and perceived risks of loss became greater.¹

Perhaps not as predictable was the impact on healthcare professionals themselves, particularly physicians. Some began to limit the scope of their practices, even where they were able to obtain high-priced malpractice insurance, due to concerns that an outrageously high judgment could exceed the amount of insurance coverage available and threaten a physician’s personal assets. Others retired earlier than they otherwise had planned, either for the same reason or because of the inability to obtain coverage at a premium price that made economic sense. In some instances, professional liability coverage was not available at any price.

A different consequence that is much more difficult to measure is the extent to which young men and women who would otherwise have entered the medical profession decided not to pursue careers in medicine because of the liability environment. History probably will not reveal the answer to that question.

This environment led to the drawing of lines in the dirt, with healthcare providers, insurers and the business community on the one hand, and the plaintiffs’ bar and allied groups on the other. As the 21^st century commenced, a huge battle over public policy was brewing on the issue of what to do about tort liability and litigation, and the state’s medical profession was to play a key role in the battle.

The first skirmish was during the election of four seats on the Mississippi Supreme Court in the year 2000. Then, early in 2002, one reporter described the unfolding legislative battle to come:

Business owners, doctors, nursing home operators and others [at the Capitol] are launching the most aggressive push in years for legislation to protect themselves from what they perceive as a growing threat of lawsuits and financially devastating jury awards. Hiring a platoon of lobbyists and public relations specialists, they are taking their concerns to state lawmakers as well as trying to explain to the public that they feel overwhelmed by a legal climate run amok.³

Not a single piece of tort reform legislation was adopted during the 2002 Regular Session of the Legislature. But, on August 23, 2002, Governor Ronnie Musgrove convened what came to be the longest special session in our state’s history. Over the course of 83 grueling days, marked by the closest thing legislative politics has to compare to hand-to-hand combat, the Legislature hammered out sweeping changes to the state’s tort laws, completely changing the way medical malpractice cases are handled in our courts.

Then, after defeating Ronnie Musgrove during the race for governor in 2003, newly elected Governor Haley Barbour called the Legislature back into special session in 2004, and additional tort reform measures were enacted and signed into law.

In the relative legal calm experienced in our state during the two decades since, it is easy to lose sight of the level of anxiety that existed among healthcare providers and those who advised them at the time. But public policy issues have a way of cycling, and prudence suggests that vigilance and active involvement in legislative and electoral politics in our state should remain a high priority for those who care about the even-handed administration of justice.