The twentieth anniversary of medical liability reform in Mississippi is approaching. It is difficult for those not in Mississippi or involved in medicine prior to the passage of this legislation to understand the toxic environment that existed in the early 2000’s that made it so difficult for physicians and facilities to provide care and treatment to patients.

Before

In the early 2000s, Mississippi was known nationwide as a lawsuit haven. Newsweek magazine described Holmes and Jefferson counties as two of the worst litigation venues in the country for businesses. Jefferson county was regularly mentioned in the national news due to the fact that the number of plaintiffs in mass tort lawsuits filed in that county was far greater than the number of people who lived in the county. The American Tort Reform Association named Mississippi a “judicial hell-hole” in November of 2003 and the United States Chamber of Commerce ranked Mississippi’s civil justice system as the worst litigation environment in the United States.

All of these factors, in addition to a sharp rise in medical malpractice claims, huge damage awards, and a significant number of non-meritorious lawsuits created an unprecedented medical malpractice insurance crisis. Liability premiums were inordinately expensive and many times there was no coverage available at any price. One in four Mississippi physicians had lawsuits pending against them in 2002 and 2003. Something had to be done. And fast. Mississippi physicians mobilized.

In response to the dire circumstances, the Mississippi legislature began tort reform efforts in 2002. A tort reform bill was passed, and although monumental in itself and a great start, that law didn’t go far enough to effect any real change.

Haley Barbour, supported by physicians, ran for governor in 2003 on a tort reform platform. He decried the catastrophic health crisis created by Mississippi’s existing civil justice system and described hospitals closing emergency rooms and maternity wards, obstetricians limiting their practices and opting out of deliveries, and surgeons ceasing to perform certain procedures because they couldn’t afford the liability premiums. He frequently spoke of the sole neurosurgeon between Jackson and Memphis willing to do emergency surgery and of patients having to drive an hour or more to see a physician for care and treatment. Together with Mississippi physicians and the legislature, he set about making changes after he was elected.

After

House Bill 13, signed into law on June 16, 2004, by then Governor Barbour, brought significant reform to Mississippi’s civil justice system, and Mississippi became one of the first states to enact caps on non-economic and punitive damages.

The new law made significant changes to Mississippi’s joinder, venue, and damage cap laws. It amended the venue statute to require each plaintiff to satisfy the venue statute independently and provided that the proper venue for medical malpractice cases was where the act or omission occurred. Medical malpractice claims could no longer be filed in any county in the state, and for the first time in years physicians, named as defendants in the action were assured of a convenient forum and certainty in the process.

The 2002 legislature had passed a $500,000 cap on non-economic damages in medical malpractice cases but that legislation was watered down by a provision that increased the cap to one million dollars in 2017 and a clause that excluded a claim of disfigurement from the cap.

HB 13 shored up the non-economic damage cap by removing the escalation clause and specifically providing that a claim of disfigurement would be subject to the cap. Additionally, and for the first time, the bill placed a cap of one million dollars on non-economic damages in cases other than medical malpractice.

The 2002 legislation had also established caps on punitive damages. HB 13 lowered these caps but retained the provision that punitive damage caps would not apply to acts occurring while the defendant was committing a felony or under the influence of drugs or alcohol.

Significantly, HB 13 also eliminated joint and several liability and established that each defendant would only be liable for his or her percentage of fault. Prior to enactment of this provision a defendant could be held jointly liable for up to 50% of the damage award, even if that particular defendant was only 1% negligent. Trial lawyers consistently took advantage of this systemic flaw in cases where the negligent act was committed largely by an insolvent or statutorily immune entity. This, coupled with the previously existing liberal joinder provisions, had enabled plaintiffs to join defendants with assets but little to no negligence into lawsuits. HB 13 also provided that percentages of negligence attributable to an immune tortfeasor could not be reallocated to other tortfeasors.

Finally, HB 13 also included a number of other provisions that provided relief to the business community in Mississippi. These changes to existing law related to premises liability, innocent sellers of allegedly defective products, and landowners, and helped retain and continue to attract corporations such as Toyota and Nissan to locate and do business in Mississippi.

It’s important to note that the new law did not infringe on any person’s right to file a lawsuit or to limit access to the courts. As Governor Barbour noted when he signed the legislation into law, it did not prevent anyone from filing a lawsuit but it did level the playing field between plaintiffs and defendants. And the effect of a level playing field was profound.

Reports showed large drops in medical malpractice lawsuits. Physician liability insurance premiums fell up to 60% in the first three or four years after passage and have remained stable. Medical Assurance Company of Mississippi, which insures around 75% of Mississippi physicians, had to increase premiums 10% in 2002 and 45% in 2003. The company was forced to impose a moratorium on new insureds in 2003. By December of 2005, the company was refunding a percentage of premiums paid–15% in 2005, 20% in 2007 and 20% in 2008. The number of neurosurgeons between Jackson and Memphis has increased and maternity wards reopened.

Going Forward

The improved civil justice system and stable medical malpractice insurance market should continue to help attract and retain physicians in Mississippi. License data from the Mississippi State Board of Medical Licensure shows the number of active physicians in the state has increased slightly since 2004 to 5,857. The Mississippi Physician Workforce and the American Association of Medical Colleges 2021 Physician Workforce Data Book indicates that Mississippi has a ratio of only 67.4 per 100,000 population of active primary care physicians (U.S. state median is 94.7). However, there’s cause for optimism that this ratio will improve in the near future. The same sources show that in 2020-2021, Mississippi ranked fourth for percentage of medical students matriculating in-state (87% compared to U.S. state median of 67%) and that more than 75% of residents who received both their undergraduate and graduate medical education in Mississippi, remain in Mississippi to practice. Finally, within five years, Mississippi medical school graduates will increase to more than 315 annually which is more than three times the Mississippi medical student graduation rate prior to 2005.

It does appear, however, that the medical liability market may be hardening for the first time in 20 years, in several areas of the country. Indicators of the hardening medical liability market can be seen in the AMA Economic and Health Policy Research report in February of 2022 and in the Annual Rate Survey of the Medical Liability Monitor of October 2021, both of which referenced a 31.1% increase in all medical liability premiums in 2020 from the previous year. The states with the largest premium increases include Illinois, West Virginia, Missouri, Oregon, South Carolina, Idaho, Kentucky, Delaware, Washington, Michigan, Texas, and Georgia. Of these states, it is important to note that Illinois, Oregon, Washington, and Georgia had their caps on medical liability non-economic damage caps declared unconstitutional. Kentucky’s constitution prohibits caps and Delaware has never enacted any caps.

The tort reforms that were passed 20 years ago, after a hard-fought battle, continue to be enjoyed by Mississippi physicians and their patients every day and the changes this legislation brought to the medical, judicial, and political landscape of the state are as profound now as they were in 2004.