Medical malpractice liability has always been with us. Sometimes it is justified. For the civil justice system to work, it must be fair to all parties involved. Tort reform in 2002 and 2004 became necessary because the system had become unfair and unbalanced. In the 1970’s, frequency and severity of medical claims increased. Many of the companies selling insurance pulled out of Mississippi. Mississippi State Medical Association (MSMA) formed an insurance company to combat this issue by assuring access to medical malpractice insurance in Mississippi. For the next 25 years, challenging frivolous and unjustified claims kept the litigation environment relatively stable.
Prior to 1995, judgments of $1 million or more against medicine or business were very rare. By the end of the century, judgments greater than $100 million had become more common. The tobacco suit on the Mississippi coast set the target with a judgment greater than $4 billion. The door was opened for mass tort liability lawsuits, the Mississippi version of class action suits. New targets developed in asbestos, prescription drugs, nursing homes and health maintenance organizations. In 1999, Alabama passed its version of tort reform with a cap on non-economic damages of $500,000. Members of the trial bar in Alabama began applying to the Mississippi bar for membership and filing cases in Mississippi.
Jefferson County Mississippi, with a population of more than 9000 at the time became the “ground zero” for mass tort liability lawsuits. In fact, in January 2001, 155 plaintiffs filed a lawsuit against the manufacturers of Propulsid seeking $1.2 billion in damages. Records show that between 1995 and 2000, approximately 21,000 Plaintiffs filed claims in asbestos litigation pending in Jefferson County. Many of these cases included a physician as a defendant as this allowed the case to stay in state court. And when it wasn’t a physician anchoring these lawsuits, it was the only pharmacy located in the county. It had so many lawsuits filed against it that it went out of business. The pharmacy was included mainly to keep access to state courts and Jefferson County. Several plaintiffs from outside the state came to this pharmacy to fill prescriptions that would allow them to join lawsuits filed in the county.
Doctors became an attractive target in this broken civil justice system. The number of claims against doctors dramatically increased. Insurance premiums increased more than 10% per year for several years. In 2001, St. Paul Fire and Marine, the second largest provider of medical malpractice insurance in Mississippi, requested approval from the insurance commissioner for a medical malpractice insurance premium increase of 75%. The Commissioner ultimately approved a 65% increase. In December of 2001, I represented MSMA at a news conference sponsored by Mississippi Blood Services. With most of the state and local press in attendance, I was called away to a phone call just before the conference started. Bill Roberts, then MSMA Executive Director, informed me that St. Paul had cancelled all medical malpractice liability insurance in the state. He expected that I would get questions on the subject, which I did. St. Paul insured almost 500 physicians that had been informed that their policies would be cancelled in 30 days. In short order, many company writing insurance in Mississippi did the same. This was the first shot in the battle to save healthcare in Mississippi. Our main weapon to gain support from the legislature and the public would be information. Liability issues were occurring in many communities across the state, but there was no central clearing house to coordinate the information. A solo physician, Dr. Ben Kitchens, started a blog that was published weekly from his home in Iuka. The blog, known as “Tort or Extort” allowed those of us who were communicating with the legislature, press, and public to stay up to date on current issues in all areas of the state.
The Mississippi legislature was scheduled to begin its regular session in 2002. As we had done for years, MSMA and other organizations went to the legislature to ask for relief. The model request was simple. The gold standard was the California Medical Injury Compensation Reform Act (MICRA). MICRA was passed in 1975 and had worked well in California for 25 years. Many states had reformed their civil justice system based on the MICRA principles. The AMA and specialty societies endorsed MICRA. MICRA had several important features but their cap on non-economic damages of $250,000 was the main component.
To say this was an uphill fight was an understatement. The Mississippi House and Senate were controlled by Democrats. The Governor and Lieutenant Governor were Democrats. The plaintiffs’ bar heavily influenced politics in Mississippi as well. The Black Caucus was a powerful force in the Democratic party and the Mississippi house. In an effort to gain their support, the day after the St. Paul announcement, I contacted the president of the Mississippi Medical and Surgical Association. While talking with him, I suggested that he might have some influence with the Black Caucus in dealing with tort reform legislation. His response was a definite maybe. As the discussion continued, I pointed out to him that St. Paul and other liability carriers were pulling out of the state. This was followed by several minutes of silence until he informed me that his insurance carrier was St. Paul. I told him “Well, not anymore!” From that point on, their Association became an important ally in addressing tort reform legislation.
Across the state, access to many types of care became problematic. Neurosurgery and obstetrics were especially affected. Physicians across the state representing their specialty societies, component societies, and MSMA began having meetings with civic clubs, church groups, public forums and legislators. As the poster child for lawsuit abuse, the national media covered the story. The New York Times, The Wall Street Journal, The National Law Journal and AMA News all followed the story. Mississippi print and electronic media continued to follow this crisis almost daily. Meanwhile, more doctors left the state, restricted their practices, and many new graduates also left. Recruiting from outside the state stopped. The legislature went home from its regular session without taking any action.
Governor Musgrove organized meetings between MSMA and the plaintiffs’ lawyers. We sat down to discuss our agenda items for tort reform and how they relate to MICRA. Needless to say, they dug in and would not budge. A special session was called later in the year, which culminated with the passage of HB 2 and HB 19. This legislation offered some great wins for medicine, including establishing caps on noneconomic damages, limited joint and several liability for defendants that were not more than 30% at fault, and required some nexus to exist between the venue and the facts of the case. Unfortunately, following passage of this legislation, very little change in the liability climate occurred. Many felt, myself included, that the 2002 legislation did not go far enough to implement MICRA’s gold standard. Despite the shortcomings of the 2002 legislation, we were proud of the progress made. Proud to start the momentum that would ultimately culminate with 2004 tort reform. This was one small step for physicians, and a giant leap for patient care in Mississippi.