In 2002, the legislature, under the leadership of Governor Ronnie Musgrove, began the arduous task of implementing medical liability reform in Mississippi with HB 2 and HB 19. And in June of 2004, with the stroke of a pen, Governor Haley Barbour changed the very landscape of healthcare in Mississippi by signing in HB 13, and finished what was started in 2002.
As we commemorate the 20th anniversary of the passing and signing of the 2002 legislation, which went into effect January 1, 2003, a number of us with some years under our stethoscopes came to the realization that many of our younger colleagues have very little if any knowledge and or appreciation for the events that laid the foundation for the atmosphere in which we practice today. At MSMA, I served as Chair of the Counsel on Legislation from 2000 – 2004. My goal is to share with you some reflections on this critical time in Mississippi history.
Prior to 1992, the State of Mississippi for all practical purposes was run by the Democratic Party. The Mississippi Senate, House of Representatives, and Governor’s mansion had been overwhelmingly Democratic since the post-Civil War reconstruction era. The winds of change became evident on January 14, 1992 when Daniel Kirkwood “Kirk” Fordice was sworn in as the 61st governor of Mississippi and the first republican to occupy the mansion on Capitol Street since 1876. Fordice was a staunch conservative businessman from Vicksburg, who ran on a pro-business, anti-crime, low taxes, and family values platform.
Even though the governor’s office was, at least for the time being, held by a pro-business republican, the Senate, House of Representatives, and Supreme Court remained predominately Democratic. Many of our elected officials’ campaign coffers, including the Mississippi Supreme Court, were replete with donations from the Mississippi plaintiffs’ bar.
January 11, 2000 represented a return to the status quo as Ronnie Musgrove, a Democrat from Batesville, MS, laid down his Senate gavel as Lieutenant Governor and was sworn in as the 62nd Governor of Mississippi. The stars were aligned and fields were fertile as the Mississippi plaintiffs’ lawyers began to reap what they had sown.
Some years prior to 2004, the predominately Democratic Mississippi Supreme Court upheld a very liberal joinder rule which opened the door to a nightmare of mass tort claims. While judgments against physicians were mounting, plaintiffs from all over the country were “joining” mass tort claims against drug manufacturers, chain pharmacies and local “mom and pop” pharmacies in Mississippi. The most notorious cases where those of the diet pill, Fen-Phen. I personally knew of one an individual that took one Fen-Phen tablet and reported some periodic shortness of breath. He then joined a mass court case in Claiborne County, Mississippi and walked away with a $250,000 award. He continued to run the hills of Vicksburg for years following the case. He was never diagnosed with any heart problems. While the pharmaceutical industry was struggling with outrageous and unsubstantiated jury awards, it was the physicians and hospitals of Mississippi who bore the weight of our broken judicial system.
There were two primary legal loopholes that fed the flames of physician discontent and skyrocketing liability awards. First was caps on non-economic damages. It is important to remember the flawed system was never about economic damages (those that could be calculated such as lost wages, medical bills, etc.). Liability companies had a well-defined system to evaluate and quantify real and actual economic damages. The fly in the ointment was rewards for such non-economic damages as “hedonic” or “pain and suffering.” Hedonic refers to the pleasure or happiness that one derives from doing what we like, or avoiding what we do not like. There were no parameters on Hedonic awards. A prime example would be a routine colon resection in which a sponge is left in the patient. Two weeks later the error is discovered and a second surgery is required to remedy the error. It is obvious that a medical negligence occurred. The physician’s liability company would make the patients whole for economic damages from the second surgery. Let’s say $100,000 to cover the second surgery which resulted in loss of wages and rehabilitation, etc. Those would be well defined in quantitative rewards. However, the patient might well complain that because of the physician’s error and resulting medical and/or surgical repair of the error that he/she might not enjoy their favorite foods any longer or no longer enjoy intimacy and companionship with their spouse. The award for these “non-economic damages” might well be in excess of $1,000,000 to $5,000,000. There existed no parameters for non-economic damages.
Back to the illusive sponge. Let’s say the tort occurred in a hospital in Rankin County, Mississippi. The trial lawyer was often successful in moving the court proceedings (or venue) to a county that had a reputation for being plaintiff friendly (a euphemism for rewarding big jury awards).
The albatross around the physician’s neck, of no restriction on non-economic awards and venue changes, resulted in a predictable chain of events. Medical liability companies were forced to pay high awards for mostly frivolous lawsuits. To cover their losses, malpractice premiums immediately began to escalate. In fact, some malpractice premiums in Mississippi exceeded $100,000 per year. In order to bridle the rising liability premiums, physicians began to move from high liability areas of the state (Mississippi Delta, for example) to more physician friendly locations, such as Madison County, Rankin County, Lee County, Lamar County, and Harrison County, for example. This left large areas of the state under-served, mostly by medical and surgical subspecialists. Many physicians left the state. Medical students were graduating from our outstanding medical school in Jackson and leaving the state for residencies – never to return. Physicians began to limit the types of patients they saw and the procedures they performed. Many physicians dropped or limited their hospital privileges in an effort to decrease their exposure. There were days were there were no neurosurgeons from the Coast to Corinth, with the notable exception of the University Medical Center which enjoyed the blanket of the Tort Claims Act. Physicians were forced to become employed by city/county hospitals in order to be covered by the Tort Claims Act or to be employed a large hospital chain that were more willing and able to absorb the cost of rising premiums. A number of doctors just took early retirement. Most family doctors stopped delivering babies. Medical liability companies continued to raise premiums, the end result being that several companies locked their doors and left the state. The remaining companies put a moratorium on taking new policy holders and/or dropped high risk physicians (OBGYN’s, Neurosurgeon’s, ER Physicians, etc.). Without a doubt a devastating plague had visited the already fragile healthcare system in Mississippi. The solution was simple, cap awards on non-economic damages, put reasonable parameters on venue, and create equitable guidelines for “Joint and Several Liability,” a legal tenant in many states in which two or more parties can be held independently liable for the full amount of a personal injury plaintiff’s damages, regardless of their respective degrees of fault.
The 2002 session of the Mississippi Legislature began as over a hundred sessions had before. Then democratic Lieutenant Governor Amy Tuck gaveled in the Senate just as long-time democratic speaker of the House of Representatives Tim Ford did the same on the opposite end of the capital rotunda. However, as members of both chambers hugged their colleagues whom they had not seen for nine months, there was a cloud descending over the gold-plated eagle that stood guard over the upcoming proceedings. There were prevailing winds of discontent and anger as member of the business and medical community laid wait for the session to get underway. Each side wrapped their loins as the battle lines were drawn. Mississippi’s pro-plaintiff, anti-business, medicine killing tort laws had to come to an end. The state could no longer be the haven of the exurbanite, unreasonable jury awards.
In preparation for the anticipated battle over tort reform, Governor Musgrove created a task force on medical liability reform that met in mid to late 2001. The Task Force was made of representatives from both the medical community and the plaintiffs’ bar. Dr. Briggs Hobson, Dr. George McGee and I carried the water for organized medicine. Members of the plaintiffs’ bar sat with bated breath on the opposite side of a huge conference table in the sprawling Walter Sillers State Office Building.
To Governor Musgrove’s credit, he attended each of the hours long meetings as both sides, pleaded their case, and sought common ground that would result in adequate protection of Mississippians’ civil liberties while at the same time bringing relief to the suffering medical and business communities. The 2002 legislative session began as schedule on the first Monday after the last bottle of the 2002 New Years’ Day champaign had been depleted. The session was typically uneventful with only vailed attempts at tort reform. We all knew the real war was on the horizon in the form of a special session sometime in mid-2002. During the regular 2002 session, while discussing the issue around tort reform, I was successful in securing a public commitment from Governor Musgrove that if a mutually agreed upon tort bill came across his desk, he would in fact sign the bill into law. This promise was cemented in the presence of well over 200 Mississippi physicians, clad in their white coats, at the Mississippi Capitol.
Much like a Mississippi Gulf Coast hurricane, the rising waters of impatience and discontent came roaring ashore in the first week of September 2002. An Extraordinary Session (the actual term designated for a special term) was called and quickly began. As House and Senate members packed their bags and headed to the capitol city, organized medicine sharpened their swords and were ready to do battle. September rolled into October, where we claimed our first victory in the passage of House Bill 2 (H.B. 2). Then October rolled into November, and on November 26, 2002, the day before Thanksgiving, both the Senate and the House Conferees agreed on House Bill 19 (H.B.19) Being a man of his word, the Governor signed both bills into law and they went into effect January 2003. The longest special session of the Mississippi Legislature, 85 days, was finally in the books. Those of us at MSMA knew the 2002 Bill would not result in sufficient relief for doctors and the citizens of Mississippi. However, knowing that passing some form of tort reform in essence would break the ice. We all held our noses and attended the bill signing ceremony.
The 2002 Bill did in fact set forth much-needed caps on non-economic damages. However, the caps were not set in stone and escalated at predetermined dates and times. They began at $500,000 on non-economic damages then several years at $750,000, then yet another rise down the road to over $1,000,000. Moving the goal post on caps was lacking in luring insurance companies back to the State of Mississippi. Venue was inadequately addressed as was Joint and Several liability. There was however, a bright spot H.B.2. The bill established a State owned and State established medical liability company known as The Mississippi Medical Malpractice Availability Plan. At the continued insistence of Senator Dean Kirby, the Tort Claims Board was instructed to add four consultants to its ranks in order to administer the plan. The bill required two physicians and two insurance agents to participate. I was fortunate enough to be one of the two physicians along with Dr. George McGee. With seed money from the legislature of approximately $50,000, we succeeded in insuring well over 100 physicians and kept their practices alive. As a result, patients received the much-needed medical attention they deserved. After the 2004 definitive Tort Reform Bill was passed and adequately insuring a cohort of otherwise uninsurable physicians for close to five years, the State sold the plan for $17,000,000.
The passage and bill signing of H.B.2 in the waning days of 2002 heard a collective sigh of relief from both medical and business communities. Even though this was not the product we wanted, we had accomplished the unthinkable. Thanksgiving of 2002 saw the addition of entirely new blessings to pray over. Maybe, just maybe, the light at the end of the tunnel was in fact not a train.
The 2003 Mississippi Legislature came and went with a whimper and a prayer as most elected officials kicked up as little dust as possible. After all, it was an election year. As we all yawned and awoke from a long winters nap, there was in fact a stunning event that rattled the century old window panes in the State House in Jackson. The first week of December 2002 saw the Democratic Lieutenant Governor Amy Tuck announce she would in fact qualify as a Republican for reelection as Mississippi’s Lieutenant Governor in the November 3rd election cycle. It came as very little surprise to political insiders that only the 2nd women in Mississippi’s history to hold a state-wide elected office would qualify as a Republican. Amy Tuck had joined the likes of Thad Cochran, Trent Lott, Haley Barbour and others, who carried the ideologies of pro-business, pro-medical, and pro-tort reform. There was a new day rising in Mississippi politics.
MSMA, BiPEC and the newly founded Mississippians for Economic Progress decided to let sleeping dogs lie and basically sit on their hands during the 2003 legislative proceedings. The medical and business community spent 2003 preparing for the November elections and going back to the drawing boards in preparation of round two of the Tort Reform battle that was planned for the 2004 session.
The November 4, 2003 election cycle was a breath of fresh air to the ranks of the business and medical communities in the magnolia state. Amy Tuck defeated Democratic State Senator Barbara Blackmon while long time Yazoo City native, Washington Lobbyist, and former chair of the National Republican Party, Haley Barbour, claimed the Governor’s Office by a 52.59% margin over then Governor Ronnie Musgrove. For the first time in Mississippi’s history both the Governor and Lieutenant Governor’s chair was occupied by pro-business, pro-tort reform, Republicans. MSMA was prepared and ready to breathe new life into a still crumpling environment for the art and science of medicine. The times they were a changing.
As previously mentioned on June 16, 2004, after a 21 day special session of the Mississippi Legislature, the decade long battle for the reform of the civil justice system had come to fruition. House Bill 13, the 2004 Tort Bill Reform Act served as an aggressive addendum to the 2002 Tort Reform Bill. The 2004 Tort Bill affected civil actions filled on or after 2004.
The 2004 tort reform package introduced innovative measures to curb mass tort suits, frivolous lawsuits, and excessive jury awards. In summary, the Bill created a hard cap (non-escalating) on non-economic damages of $500,000 for medical liability cases and introduced a $1,000,000 limit on all other civil cases. Venue was designated to the county in which the tort occurred and joint and several liability was repaired. In total the business and medical community could not have been more pleased.
If one were still and quiet, in the early mornings following September 1, 2004, one could hear the sound of medical liability companies moving back into the Magnolia State. A short time later (much shorter than anyone anticipated) one would hear the collective sighs of relief as MCAM policy holders received a significant decrease in premiums for the first time in years. This was soon followed by years of rebates on premiums. It was with profound gratitude to MSMA, BiPEC, Mississippian for Economic Progress, and countless others that were in the medical profession for the first time in years looked forward to a brighter future.
In closing as the sun sets on the careers on many of us who fought the good fight, dreamed the unthinkable, and sacrificed our last measure of effort, never forget - together we are stronger. As Margaret Mead once said, “Never doubt that a small group of thoughtful, committed citizens can change the world; indeed, it is the only thing that ever has.”
So, next time you serve as Doctor of the Day at the Capitol, or simply go sight-seeing, take a moment to pause. If you look closely in every hallway, hearing room, House and Senate floor, and the steps outside the capitol, you can still see the 20-year-old stains of the blood, sweat and tears of those who fought the good fight. At the end of the day, the efforts of the devoted group did in fact save you and I an enormous amount of money. But much more importantly, those dedicated energies put in place for years, in a very real sense, provided a system that allows all of us the opportunity to practice the most noble of professions, that of medicine.