A Critique of Tort Reform in Mississippi: Why was tort reform necessary and

what was its purpose? What has tort reform accomplished and at what cost?

I. An Overview of Tort Reform in Mississippi

In the years leading up to the 2002 and 2004 special legislative sessions in Mississippi,

advocates of tort reform capitalized on a combination factors to push tort reform through the

legislature.1 According to tort reform advocates, the structure of Mississippi’s legal system was

unacceptably vulnerable to the bringing of frivolous law suits.2 Certain jurisdictions in the state

experienced extremely high volumes of medical malpractice suits.3 Ultra-high verdicts, even

when justified, shocked the sensibilities of many around the state.4 The mainstream media

exacerbated this notion with anecdotal reports of doctors being unable to obtain affordable

malpractice insurance and some even fleeing to practice in states with lower premiums.5 While

the causal link between the malpractice suits being brought and the skyrocketing of insurance

premiums has been debated, the legislature responded to these pressures by passing significant

procedural and substantive changes to Mississippi’s medical malpractice law, including

unprecedented caps on noneconomic damages and new procedural hurdles for plaintiffs.6

A.) The Cap on Non-Economic Damages1 Robert A. Weems & Robert M. Weems, Mississippi Law of Torts § 4:8 (2d ed. 2013).2 Lynne Cossman & Debra Street, Practice and Malpractice: Physician Responses to the Liability ‘Crisis’, The Journal of Public and Professional Sociology, Vol. 2: Iss. 1, Art. 3 (2008), http://digitalcommons.kennesaw.edu/jpps/vol2/iss1/33 Id.4 Id.5 Id.6 Weems & Weems, supra , § 4:8

In 2002, the legislature enacted Miss. Code Ann. § 11-1-60 and established a $500,000

cap on noneconomic damages in medical malpractice cases.7 In 2004, the legislature amended

the statute to add a $1 million cap on noneconomic damages in nonmedical malpractice cases.8

The 2004 version also deleted an exception for “disfigurement” and scheduled increases that had

been passed in the 2002 version.9 The statute also is clear to point out the term “non-economic

damages” does not include “punitive or exemplary damages.”10 Punitive or exemplary damages

are governed under Miss. Code Ann. § 11-1-65 (West 2004).11

The pertinent portion of the statute provides:

2)(a) In any cause of action filed on or after September 1, 2004, for injury based on malpractice or breach of standard of care against a provider of health care, including institutions for the aged or infirm, in the event the trier of fact finds the defendant liable, they shall not award the plaintiff more than Five Hundred Thousand Dollars ($500,000.00) for noneconomic damages.12

The statute also provides the jury will not be informed of the cap, and it will be applied by a judge.13. In

a 2007 decision, Estate of Klause, the Mississippi Supreme Court held the cap applies to plaintiffs in

wrongful death actions under Miss. Code Ann. § 11-7-13 (West 2004).14 In Klaus, the court also

suggests it would find the cap applicable in cases involving multiple defendants by instructing the term

“defendant” in the statute is to be read as “defendants”.15 In its analysis, the court based its holding, in

part, on Mississippi Dept. Transp. v. Allred, where it had previously applied the Mississippi Tort Claims

7 Miss. Code Ann. § 11-1-60(2)(a)(West 2004)8 Miss. Code Ann. § 11-1-60(2)(c)(West 2004)9 Weems & Weems, supra, § 4:910 Id.11 Id. 12 Miss. Code Ann. § 11-1-60(2)(a)(2004)13 Id. § 11-1-60(2)(c)(2004)14 Estate of Klaus ex rel. Klaus v. Vicksburg Healthcare, LLC., 972 So. 2d 555, 558-59 (Miss. 2007).15 Id. at 559. E.g., Weems & Weems, supra, § 4:9

Act damages cap to a case involving multiple defendants. 16 The court, in Klaus, expressly stated the cap

applies to, “plaintiff or plaintiffs.”17 Therefore, in multiple-plaintiff actions, plaintiffs could be faced

with a cap significantly lower than $500,000.18

B.) Procedural Changes

The legislature also enacted a requirement that plaintiffs give 60 days’ written notice of

intention to bring the action, prior to filing suit against a health care provider for medical

malpractice.19 The plaintiff must notify the defendant of the legal basis of the claim and the type

of loss sustained, including with specificity the nature of the injuries suffered.20 Miss. Code Ann.

§ 11-1-58 requires, with some exceptions, the plaintiff’s attorney in medical malpractice cases to

attach a certificate to the complaint to the effect that he has consulted with an expert prior to

filing the lawsuit.21

The legislature also enacted Miss. Code Ann. § 11-1-62 to prevent medical professionals

from being held strictly liable in pharmaceutical products liability case.22 The statute requires the

plaintiff to plead facts which amount to negligence on the part of the medical provider; otherwise

the provider cannot be sued.23 This will make it more difficult for Plaintiffs to find resident

physicians to sue for purposes of defeating federal diversity jurisdiction.24

16 Mississippi Dept. of Transp. v. Allred, 928 So. 2d 152, 154 (Miss. 2006). E.g., Weems & Weems, supra, 17 Estate of Klause, 972 So. 2d 555, 558-59 (Miss. 2007).18 Weems & Weems, supra , § 4:919 Miss. Code Ann. § 15-1-36(15) (West 2004). E.g., Weems & Weems, supra, § 4:1020 Id. § 15-1-36(15)(West 2002)21 Id. § 11-1-58 (West 2002)22 Id. § 11-1-62 (West 2002) 23 Id., E.g., Weems & Weems, supra, § 4:1224 Weems & Weems, supra, § 4:12

The legislature also established a two year statute of limitations for medical malpractice

actions.25 The statute requires an action to be filed within two years of the date the act, omission,

or neglect was discovered or should have been discovered with reasonable diligence.26 The time

period begins to run when the patient discovers or should have discovered the injury, the cause

of the injury, and the causal relationship between the injury and the medical provider’s conduct.27

The focus is on the time the patient discovers, or should have discovered through reasonable

diligence, that he probably has an actionable injury.28 The statute establishes a period of repose

of seven years after the alleged act, omission or neglect, after which no claim may be brought

except for the following two exceptions: (1) where a foreign object introduced during a

procedure is left inside the patient’s body, in which case the action accrues when the object is, or

reasonably should have been, discovered, and (2) where the cause of action is fraudulently

concealed, in which case the action accrues when the fraud is, or reasonably should have been,

discovered.29

II. Why was tort reform Necessary and what was its purpose?

25 Miss. Code Ann. § 15-1-36 (West 2002)26 Id. 27 Id.28 Weems & Weems, supra, § 4:1329 Miss. Code Ann. § 15-1-36(2)(a)-(b)(West 2002)

Mississippi, along with several other southern states, passed tort reform in response to a

malpractice insurance crisis.30 There have been three national malpractice insurance crises since

1974, with interval periods of relative stability and moderate premium increases.31. The first

crisis in the mid-1970’s involved a spike in premiums and the lack of availability of malpractice

insurance coverage.32 With premiums rising as high as 500 percent in some states, some

commercial insurers withdrew from the medical liability insurance coverage business.33 This led

to tort reform being passed in several states.34 In the mid-1980’s, premiums increased across the

country from 20-100 percent.35 This crisis was one of affordability in multiple lines of insurance

in multiple jurisdictions.36 This crisis led to the passage of tort reform, including malpractice

reform, in still other states.37 Finally, in the early 2000’s, a third national crisis happened.38

Premiums rose at least 15 percent for most physicians, and for specialists, increases were in the

range of 20-33 percent.39

While the cause is debated by many, the legislature responded to increasing pressure

from the health care industry, including insurers and physicians, to combat an increase in

insurance premiums, to stop the perceived threat of doctors leaving the state, and to reign in a

system which had gained Mississippi notoriety as the “jackpot justice” capital of the nation.40

Contrary to this real or perceived threat, a Governmental Accountability Study in 2003 on the

extent and implications of the malpractice crisis in five bellwether states reported anecdotal 30 Leonard J. Nelson, III, Michael A. Morrisey, & Meredith L. Kilgore, Medical Malpractice Reform in Three Southern States, 4 J. Health & Biomedical L. 69, (2008).31 Id. at 7132 Id. 33 Id.34 Id.35 Id. at 7236 Id. 37 Id. 38 Id.39 Id.40 Cossman & Street, supra

reports of insurance provider actions in response to malpractice problems such as withdrawing

services or leaving the state were generally either not substantiated or had little widespread

impact on access.41 Insurers and healthcare providers, however, point to increases in loss

payouts, and decry a legal system rife with frivolous lawsuits and astronomical verdicts, along

with the accompanying legal expense, as the cause of malpractice premium spikes.42

A.) Forces that brought about tort reform

Neil Vidmar, the Russell M. Robinson, II, Professor of Law at Duke University Law

School, and Leigh Anne Brown, a 2003 graduate of Mississippi College Law School, authored a

2002 piece published in the Mississippi College Law Review discussing the potential causes of

the medical malpractice insurance crisis in Mississippi. According to the article, a Clarion

Ledger piece in 2002 quotes one Gerald Wages, of Reciprocal of America, a liability insurance

company, as testifying before congress, “[o]ur ability to continue writing insurance in

Mississippi is seriously threatened at this point.”43 He is paraphrased as claiming, “the number of

claims are rising higher than premiums collected, causing severe losses for the company and

affecting the cost of insurance for hospitals and doctors.”44 In response to a question by a senator

about a solution to the crisis, he said, “I think what it’s going to take is meaningful changes to

our civil justice system to get insurance companies to return to the state and start writing

insurance.”45 Vidmar and Brown cite another 2002 article as saying, “doctors said they were told

by many companies the skyrocketing premiums were the result of large jury verdicts being

41 Cossman & Street, supra42 Nelson, Morrisey & Kilgore, supra, at 72.43 Neil Vidmar & Leigh Anne Brown, Tort Reform and the Medical Liability Insurance Crisis in Mississippi: Diagnosing the Disease and Prescribing a Remedy, 22 Miss. C. L. Rev. 10 (2002); See, e.g., Patrice Sawyer, Insurers: Claims Causing Losses, Clarion Ledger, at 1B (June 22, 2002). 44 Id. at 1145 Id.

handed down against physicians in Mississippi.”46 Another article they cite reported, “the

Medical Assurance Company of Mississippi, a doctor-owned insurance group, has notified

doctors that it will raise its rates by forty-five percent due, in part, to the state’s legal climate,

according to a letter sent to policy holders.”47 Critics of the pre-2002 tort system claimed large

and undeserved jury awards had increased exponentially, resulting in a financial drain on the

insurer reserves.48 Proponents of tort reform also alleged large awards had an immediate

secondary effect of fostering frivolous litigation by plaintiff contingency fee lawyers hoping to

hit a “jackpot” case, and also frightened defendants and insurers into unwarranted settlements out

of fear of “runaway” juries.49

To digress for a moment, I once read a book called “Words That Work: It’s Not What

You Say, It’s What People Hear” by a man named Frank Luntz.50 Mr. Luntz is a master

wordsmith who has consulted with dozens of Fortune 500 companies and high-power politicians

(remember the famous 1994 “Contract With America” Republicans rode into national legislative

power)51. The terms “jackpot justice” and “runaway juries,” and variations thereof, became

iconic symbols of the need for tort reform, evoking such disdain and disgust for even the noblest

of plaintiff’s attorneys that I have begun to wonder whether the masterful Mr. Luntz himself was

involved in their creation (which to my knowledge he was not).

Speaking of Republicans riding into power, the issue of tort reform served as a powerful

catalyst in Mississippi politics, and in-turn perhaps, Mississippi politics served as a powerful

46 Id. See, e.g., Pamela Berry, Doctors Turning to Last Result, Clarion Ledger, at 10A. (July 21, 2002).47 Id. See, e.g., Julie Goodman, Premiums Rise by 45%: Insurance Group's Hike Comes As Doctors Seek Relief, Clarion Ledger, 1A (September 22, 2002).48 Vidmar & Brown, supra at 12.49 Id.50 Frank Luntz, Words That Work: It’s Not What You Say, It’s What People Hear, (2007).51 Id.

catalyst for tort reform in the 2000-2004 years. Longtime nationally syndicated political

columnists and Mississippi State University Director of Public Affairs Sid Salter (and fellow

Philadelphia, Mississippi native, I might add) wrote a 2003 article entitled, “Tort Reform Drives

Political War”.52 Salter writes, “[w]hile Democratic Gov. Ronnie Musgrove and Republican

challenger Haley Barbour still get marquee billing, the gubernatorial campaign – and particularly

the gubernatorial campaign contributor’s lists – are driven by the single issue of tort reform.”53

Salter discusses a Forbes magazine, July, [2003] article entitled “Buying Justice” which outlines

that Mississippi had been a political battleground between trial lawyers, Big Labor and

Democrats on one side and Big Business, insurance companies and Republicans on the other.54

The article chronicled the fact that trial lawyers have historically been the campaign contribution

“sugar daddies” of the very judges before whom they will argue their cases, and in those years

preceding tort reform, the business community on its own and through groups like the U.S.

Chamber of Commerce responded with hardball politics to combat the trial lawyers’ influence.55

Salter quotes then-State Medical Association president Dr. John Cook as accusing U.S. Chamber

opponents of trying to “excoriate the Chamber for failing to disclose the source of the money it

spent on the 2000 state judicial elections, while consistently refusing to mention that the trial

lawyers political action committee (ICEPAC) did exactly the same thing with huge sums of

money it collected from out-of-state plaintiff attorneys who want to maintain the status quo in

Mississippi’s strike-it-rich court system.”56 Salter leaves us with an ominous-for-trial lawyers

foreshadowing: “As the gubernatorial campaign unfolds, tort reform will gain intensity as an

issue. Barbour is a clear proponent of tort reform. Musgrove – the former darling of the trial 52 Sid Salter, Tort Reform Drives Political War, (July 9, 2003) available at http://www.freerepublic.com/focus/f-news/943033/posts53 Id.54 Id.55 Id.56 Id.

lawyers – angered many of them when relatively mild tort reforms were adopted in 2002. Stay

tuned.”57

All of us who did stay tuned know how the story plays out – the now-beloved-by-many

Republican Haley Barbour, went on to crush Democrat Ronnie Musgrove in the gubernatorial

race, garnering 52.59% of the vote compared to Musgrove’s 45.81%.58 The Honorable Governor

Musgrove was later defeated by Republican Roger Wicker in a 2008 special election for one of

Mississippi’s U.S. Senate seats, and is currently Of Counsel with the Jackson, Mississippi firm of

Copeland, Cook, Taylor & Bush.59 The Honorable Governor Barbour was reelected to the

governorship in 200760, finishing his last constitutionally-allowed term as governor in 2012. In

2010, the Politico news site dubbed Barbour “the most powerful Republican in American

politics,”61 and there was speculation he would run for the 2012 Republican presidential

nomination,62 although he decided against it. Governor Barbour subsequently joined national

firm Butler, Snow, O’Mara, Stevens and Cannada, with its Mississippi base in Jackson,63 and

rejoined the Washington, D.C. based BGR Group lobbying firm he co-founded.64 As for the rest

of Mississippi state politics? The Republican Party has won every statewide65 elected office since

the 2003 gubernatorial race, with the exception of Democratic Secretary of State Eric Clark in

57 Id.58 http://www.sos.state.ms.us/elections/2003GeneralReCap/Certified/01Governor.pdf (2003).59 Attorney profile available at http://copelandcook.com/musgrove-ronnie/60 http://www.sos.state.ms.us/elections/2007/Statewide%20Results/Governor.pdf61 Jim Vandehi, Andy Barr & Kenneth P. Vogel, The Most Power Republican in Politics, Politico, (2010) available at http://www.politico.com/news/stories/0810/41236.html62 Chris Cillizza, Barbour to Iowa, The Washington Post (2009) available at http://voices.washingtonpost.com/thefix/eye-on-2012/barbour-to-iowa-1.html63 http://www.butlersnow.com/Press_Room/News/Barbour,_Hurst_Join_Butler_Snow/64 Rachel Leven, Haley Barbour to Return to Lobby Firm, (December 2011) available at http://thehill.com/business-a-lobbying/200955-haley-barbour-to-rejoin-lobby-firm65 *For the purposes of this discussion, “statewide” refers only to the offices of Governor, Lt. Governor, Secretary of State, Attorney General, State Treasurer, State Auditor, Commissioner of Insurance, and Commissioner of Agriculture and Commerce – those offices being elected by the entire state electorate, as opposed to regional or district based electorates.

200366 and Democratic Attorney General Jim Hood. Republican Delbert Hosemann would

replace Clark as Secretary of State in 200767 (Hosemann was unopposed in 2011)68 , leaving Jim

Hood as the lone statewide Democratic official. (Hood was reelected in 200769 and 201170).

The above-cited article by Sid Salter also provides some insight into a litigation climate

which, due in part to attorney greed, shocked many across the country. Salter quotes Prof. Lester

Brickman of the Cardozo School of Law in New York as saying, “[t]he toughest battles are

playing out in Mississippi, where litigation over asbestos and the faulty drug fen-phen are huge

sources of revenue. In one case in 2001 a jury in Holmes County Court awarded $150 million to

six plaintiffs who never became ill from asbestos exposure – they simply feared they would

some day.[sic] In a three-county district presided over by trial court Judge Lamar Pickard,

lawyers have filed some 4,000 separate fen-phen cases. Typically these lawyers gather plaintiffs

by distributing circulars listing a hotline number and hiring legmen to work the smaller rural

town in search of more “victims” To[sic] settle such complaints nationwide, Wyeth has dished

out $12.8 billion thus far, but it is far from done. The plaintiff lawyers have landed up to $3.8

billion, assuming a traditional 30 percent lawyer’s fee.”71 While some scholars may have

accurately characterized Mississippi at the time as a “Mecca for tort suits,”72 Vidmar and Brown

raise a legitimate question about whether, even if the general claim about Mississippi’s tort

system is true, it applies to medical malpractice cases.73 According to Vidmar and Brown, in

66 http://www.sos.state.ms.us/elections/2003GeneralReCap/Certified/03Secretary%20of%20State.pdf67 http://www.sos.state.ms.us/elections/2007/Statewide%20Results/Secretary%20of%20State.pdf68 http://www.sos.ms.gov/links/elections/results/statewide/Sec%20of%20State_Statewide%20-%20General%20Election%202011%20Results.pdf69 http://www.sos.state.ms.us/elections/2007/Statewide%20Results/Attorney%20General.pdf70 http://www.sos.ms.gov/links/elections/results/statewide/Atty%20General_Statewide%20-%20General%20Election%202011%20Results.pdf71 Salter, supra72 Vidmar & Brown, supra at 12-13; See, e.g., Mark Ballard, Mississippi becomes a Mecca for tort suits, The National Law Journal at A1, (April 30, 2001). 73 Vidmar & Brown, supra at 13

most medical malpractice cases in state courts, both plaintiffs and defendants are citizens of the

state, often residing in the same community, as opposed to the non-medical malpractice torts, a

la fen-phen, where (based upon at least anecdotal evidence, and Vidmar and Brown do not take a

position on the validity of this claim) a substantial number of claims involving multiple plaintiffs

against multiple defendants headquartered in other states, such as drug companies, were filed.74

In any event, medical malpractice cases were quite a different matter than the mass tort lawsuits

brought against large out-of-state corporations75 that made so many millions and billions of

dollars for plaintiff’s attorneys as well as defense attorneys (they didn’t defend all of those

lawsuits for free now did they?). Without a doubt, the sticker shock most Mississippians and

Mississippi politicians felt in response to these mega-verdicts created a tidal wave of public

support for tort reform that, with a little help from the physician and insurance lobbies,

swallowed up the field of medical malpractice litigation and, in 2004, came crashing down in the

form of some of the most sweeping tort reform legislation in the country, leaving detractors of

the effort cowering in its wake.

B.) Theories opposing tort reform

Critics of tort reform claim high malpractice premiums are caused by something other

than an influx in medical malpractice lawsuits. Consumer activists and trial lawyers, as well as

some legal scholars, assign blame for these insurance crises to the natural cycle of the market

coupled with investment practices of insurance companies.76 Those holding this point of view

argue, as insurance companies’ returns on investments fell with market values, premiums are 74 Id.75 Id.76 Nelson, Morrisey & Kilgore, supra, at 72.

increased to compensate for lost revenue.77 Professor Tom Baker, a preeminent scholar in

insurance law, and the William Maul Measey Professor of Law and Health Sciences at the

University of Pennsylvania Law School, has contended the malpractice crises are caused by the

underwriting practice, attributing malpractice premium volatility to a phenomenon in which loss

estimates are periodically underestimated until actual loss experience results in firms

overestimating predicted losses and increasing reserves, thereby causing a spike in premiums.78

Professor Baker points out that medical inflation is the most important factor influencing the rate

of growth in loss payouts in medical malpractice cases.79 The time of delay in learning what

actual losses occur further exacerbates this problem.80

In line with what Prof. Baker has argued, the U.S. General Accounting Office (U.S.GAO)

has reported that insurance rate setting uses actuarial techniques to set rates, to generate funds to

cover: (1) losses occurring during the period, (2) the administrative costs of running the

company, and (3) an amount for unknown contingencies, which may become a profit if not

used.81 The U.S. GAO has described the malpractice insurance cycle as follows:

A variety of factors combined to explain the malpractice insurance cycle

that produced several years of relatively stable premium rates in the

1990’s followed by the severe premium rate increases of the past few

years. To begin with, insurer losses anticipated in the late 1980’s did not

materialize as projected, so insurers went into the 1990’s with reserves and

premium rates that proved to be higher than the actual losses they would

experience. At the same time, insurers began a decade of high investment

77 Id.78 Id. at 73, E.g., Tom Baker, The Medical Malpractice Myth, 51-58 (2005).79 Id.80 Id. 81 U.S. General Accounting Office, Medical Malpractice: No Agreement on the Problems or Solutions, 66-72, (1986); See, e.g., Barry R. Furrow, Thomas L. Greaney, Sandra H. Johnson, Timothy S. Jost, & Robert L. Schwartz, Health Law Cases, Materials and Problems 506 (7th ed. 2013)

returns. This emerging profitability encouraged insurer to expand their

market share, as both the downward adjustment of loss reserves and high

investment returns increased insurers’ income. As a result, insurers were

generally able to keep premium rates flat or even reduce them, although

the medical malpractice market as a whole continued to experience

modestly increasing underlying losses throughout the decade. Finally, by

the mid-to late 1990’s, as excess reserves were exhausted and investment

income fell below expectations, insurers’ profitability declined.82

This set the stage for the malpractice insurance premium crisis of the 2000’s.83 Because of the

over-investment, some insurers became insolvent and others dropped their malpractice lines of

insurance.84 Those who remained were able to demand large rate increases.85

Prof. Baker’s assertion that malpractice insurance crises are influenced by the

underwriting cycle echoes a 2002 study’s findings. According to the study, the medical

malpractice insurance market is prone to cycles of underpricing, lost revenue by insurers, and

catchup.86 Doctors and hospitals, having been placated by the underpricing of premiums, see

these “sudden” price increases during periods of catchup which are actually deferred costs

passed on when premiums no longer cover payments plus profit.87 Once premiums reach

actuarially sound levels, profits rise; new insurers enter the market with lower rates, competitive

pressures return, and the cycle starts over again.88 The cyclical nature of interest rates also plays

82 U.S. General Accounting Office, Medical Malpractice Insurance: Multiple Factors Have Contributed to Increased Premium Rates, (2003); See, e.g., Furrow, Greaney, Johnson, Jost & Shwartz, supra at 511. 83 Furrow, Greaney, Johnson, Jost & Shwartz, supra at 51184 Id.85 Id.86 Furrow, Greaney, Johnson, Jost & Shwartz, supra at 512-13; see generally, Mimi Marchev, The Medical Malpractice Insurance Crisis: Opportunity for State Action, National Academy for Health Policy (July 2002).87 Id.88 Id.

a determinative role in insurer’s pricing.89 The insurance industry engages in cash-flow

underwriting, whereby insurers invest the premiums they collect in the bond market and the

stock market, and during periods of high returns and high interest rates, insurance companies

accept more risks to acquire premium and loss reserves they can invest.90 The premiums charged

to healthcare providers do not relate to payouts to malpractice plaintiffs, but rather are a

reflection of gains and losses on investments, rising and falling with the economy.91

Perhaps the most accurate and enlightening statement uncovered in the writing of this

paper was one made by Vidmar and Brown in the Mississippi College Law Review article

discussed above. They observe it is indeed possible that all of these theories concerning the cause

of the malpractice insurance crisis in Mississippi could be correct: policy underpricing coupled

with actuarial miscalculation of indemnities to be paid, medical inflation, the tort system, and the

insurance business cycle (including the underwriting and investment processes discussed

above).92 Even more enlightening perhaps, is their observation that the public debate in

Mississippi, as reflected in newspaper coverage, was focused entirely on the tort system while

only giving minimal attention or entirely dismissing alternative theories about the malpractice

insurance crisis as false.93

III. The cost of tort reform

A.) Projected Incidences of Malpractice and the Expansion of Liability

89 Id.90 Id.91 Id.92 Vidmar & Brown, supra, at 12.93 Id.

Tort reform, as has been enacted, seems to focus exclusively on protecting healthcare

providers and insurance carriers by reducing their liability, while mostly ignoring the harmful

effects of malpractice on patients, which as reflected by the studies below, is a wide-spread and

regularly occurring problem across the country. According to the Institute of Medicine of the

National Academies, one third of hospitalized patients are harmed during their hospitalization,

less than half of patients receive clear information of the benefits and trade-offs of treatments for

their conditions, and almost half of patients are not satisfied with their level of control in medical

decision making.94 As many as 98,000 patients die from medical errors each year.95 A Harvard

Medical Practice study reflects as many as 4 percent of hospitalized patients suffer an adverse

medical event severe enough to result in disability or death.96

While most insurance carriers and healthcare providers have been proponents of the

notion that expanded malpractice liability is the result of increased payouts and runaway jury

verdicts, the industrialization of the health care industry has contributed to an expansion of

liability as well.97 Institutions and groups deliver health care to patients, and hospitals are subject

to stricter scrutiny.98 As the healthcare industry has grown and become more specialized, the

field of malpractice has followed suit.99 While the premium spikes are historically considered to

be the result of perceived litigation risks to physicians, the expansion of liability to industries and

94 Institute of Medicine Infographic, Best Care at Lower Cost, available at http://www.iom.edu/Reports/2012/Best-Care-at-Lower-Cost-The-Path-to-Continuously-Learning-Health-Care-in-America/Infographic.aspx. The Institute has provided an extensive listing of the sources they used to compile this information available at http://www.iom.edu/Reports/2012/Best-Care-at-Lower-Cost-The-Path-to-Continuously-Learning-Health-Care-in-America/~/media/Files/Report%20Files/2012/Best-Care/infographic_references.pdf95 L.T. Kohn, J.M. Corrigan, & M.S. Donaldson, eds., To Err Is Human: Building a Safer Health System, A Report of the Committee on Quality of Health Care in America, Institute of Medicine, National Academy Press , (2000).96 Harvard Medical Practice Study, Patients, Doctors, and Lawyers: Medical Injury, Malpractice litigation, and Patient Compensation in New York, Exec. Summ. 3-4(1990); See, e.g., Furrow, Greaney, Johnson, Jost & Shwartz, supra, at 506 (7th ed. 2013). 97 Furrow, Greaney, Johnson, Jost & Shwartz, supra, at 507.98 Id. 99 Id.

companies has also contributed to the cost of providing insurance.100 Another effect of industrial

advancements has been brought about by cost containment mechanisms built into the

organizational structure of these new healthcare entities.101 Managed care systems prevent

physicians from passing increased malpractice insurance premium costs on to patients or

insurers, thereby decreasing revenue for the physicians.102 To compensate, doctors see more

patients per day, spending less time with each patient.103 While this does not necessarily translate

into increased incidences of negligence by doctors, it does create a more litigious environment

for a patient who has been injured. Disgruntled patients are more likely to sue than those who are

able to voice their concerns and have them acknowledged by the offending doctor.104

B.) The Effect of Tort Reform on Malpractice Lawsuits

Mark A. Behrens, Esq., one of Washington, D.C.’s top lawyers, specializing in defense

litigation, civil justice reform and counseling in the prevention of liability exposure, is the co-

chair of international firm Shook, Hardy & Bacon’s Washington-based Public Policy Group.105

Mr. Behrens authored a 2011 study comparing lawsuits against doctors in all specialties before

and after tort reforms were adopted in 2003.106 The study examined physicians covered by the

largest medical liability insurer in the state, the Medical Assurance Company of Mississippi

(MACM), which insures more than 75% of Mississippi’s physicians.107 According to a

100 Id.101 Id.102 Id.103 Id.104 Id.105 Attorney biography available at http://www.shb.com/attorney_detail.aspx?id=13 (Mr. Behrens is also a partner at Shook, Hardy & Bacon, a member of the ALI, and has taught law at The American University’s Washington College of Law and Pepperdine University School of Law in California).106 E.g., Alicia Gallegos, Mississippi Tort Reforms Lead to Reduction in Lawsuits, American Medical News (August 22, 2011), available at http://www.amednews.com/article/20110822/profession/308229941/6/; Mark A. Behrens, Medical Liability Reform: A Case Study of Mississippi, Obstetrics & Gynecology, 335-339, (August 2011).107 Id.

discussion of the study by Alicia Gallegos, a writer for American Medical News, published by

the American Medical Association, from 2000 to 2004, an average of 318 lawsuits were filed

each year against doctors covered by MACM.108 Between the years of 2005 and 2009, only 140

such lawsuits were filed.109 For obstetrician-gynecologists in particular, an average of 44 suits

were filed each year from 2000 to 2004, and between 2005 and 2009, this figure had dropped to

15.110

The study also observes insurance premiums dropped considerably after tort reform

efforts.111 From 2000 to 2004, premiums for all specialties escalated by 98%, with no change in

premiums occurring in 2005.112 Between 2006 and 2010, premiums reportedly decreased from 5-

20% each year.113 Mr. Behrens argues this data proves how significant tort reforms in Mississippi

have been. (Mr. Behrens was also co-counsel for the American Tort Reform Association).114

According to Mr. Behrens, and contrary to the views of critics like Prof. Tom Baker discussed

above, “[c]ommon sense suggested that [award limits] would result in lower payments by

insurers and that free market forces would ensure that those savings would be passed on to

physicians. The reductions in Mississippi as a result of tort reform, both in terms of the number

of lawsuits filed and the premiums paid by physicians, were quite dramatic.”115 According to

Behrens, claims by Plaintiff’s attorneys that limits on damages awards do not improve the

medical liability climate are intuitively baseless, and this study provides “empirical data to

objectively answer these charges for the benefit of policymakers and courts.”116

108 Id.109 Id.110 Id.111 Id.112 Id.113 Id.114 Id. 115 Gallegos, supra116 Id.

Behrens’ study has not gone un-criticized, however. Mary H. Graffam, Director of

Research for the American Association for Justice (AAJ) in Washington, D.C., has written a

piece for the AAJ rebuking Behren’s data as misleading.117 Notably left out of Behren’s study,

Graffam says, was the fact that an analysis of MACM’s rates shows the company’s rates for

Mississippi Obstetrician/Gynecologists were stable between 1998 and 2001, a period prior to tort

reform legislation when the cap on damages was not in place.118 Between 2002 and 2003, despite

passage of tort reform legislation setting the damages caps, rates shot up 45 percent.119 In 2004,

MACM raised rates an additional 20 percent.120 In 2006 Obstetrician/Gynecologists covered by

MACM saw their rates decrease by 5 percent.121 At this point, the insurance “crisis” producing

increased rates for doctors nation-wide was easing and premiums started to drop across the

country.122 According to Graff, Behrens’ assertion that Mississippi’s caps reduced premiums was

contradicted by his colleague at the American Tort Reform Association, Mr. Sherman Joyce,

who she quotes as being “on record” saying, “[w]e wouldn’t tell you or anyone that the reason to

pass tort reform would be to reduce insurance rates.”123 Although it does not necessarily negate

her assertion that Mr. Joyce’s statement contradicts Mr. Behrens, it is worth noting (to preserve

the objective position and tone of this paper) that Mr. Behrens’ assertions were made in a study

published in 2011, while her cite to Mr. Joyce’s statement refers to a 1999 article.124

C.) The effect of tort reform on plantiffs

117 Mary H. Graffam, Tort Reform Lobbyist Publishes Disingenuous Assessment of Medical Malpractice Caps, (July 2011) available at http://www.fightingforjustice.org/content/tort-reform-lobbyist-publishes-disingenuous-assessment-medical-malpractice-caps118 Id. 119 Id. 120 Id. 121 Id. 122 Id. (citing to: Medical Liability Monitor, various rate survey editions)123 Id. (citing to: Liability Week (July 1999)124 Id.

Proponents of tort reform have focused almost solely on the search for relief from, what

many authorities suggest are market-driven, premium policies of malpractice insurance

providers.125 Lucinda M. Finley, the Frank Raichle Professor of Law at SUNY Buffalo Law

School126 raises important issues about those who were left out of the public debate over tort

reform.127 Although her 2004 paper addresses the issue from the standpoint of prospective

national tort reform, the concerns she discusses are directly applicable in Mississippi, where

sweeping tort reform legislation has already occurred. Damages caps, she argues, are not likely

to alter the hard market/soft market insurance cycles affecting premium rates and insurance

availability (discussed above), but they do make it less likely certain types of injuries will be

redressed through the courts.128 The reasons being, claims with low economic loss recovery

value, but high noneconomic loss are no longer worth pursuing.129 For example, a person who

earns low or no wages, like the poor or the elderly, does not stand to recover as much for lost

wages as a young professional injured in his prime, and, if their medical expenses are low,

although they may have suffered a life altering disability due to egregious conduct by a physician

or healthcare provider, their pain and suffering damages are capped at $500,000.00 in

Mississippi. If the amount of time and money an attorney has to invest to recover this money is

too great in proportion to the percentage he stands to recover, then there is a decreased financial

incentive for him to take this case, forcing them to take on lower quality legal representation or

leaving the person without any recovery. Finley says these caps have a significant adverse

125 Lucinda M. Finley, Hidden Victims of Tort Reform: Women, Children, and the Elderly, The 2004 Randolph W. Thrower Symposium: The Future of Tort Reform: Reforming the Remedy, Re-Balancing the Scales, 53 Emory L.J. 1263 at 1265 (2004).126 Profile available at http://www.law.buffalo.edu/faculty/facultyDirectory/FinleyLucindaM.html127 Finley, supra at 1265.128 Id.129 Id.

impact on women and the elderly, and on cases involving the ultimate injury of death, especially

when a child dies as a result of medical malpractice.130

Finley conducted research comparing empirical evidence from several states on how

juries in medical malpractice and other tort suits allocate their damage awards between economic

loss damages and noneconomic loss damages and compared those cases in which men were the

victims to cases where women were the victims.131 Her findings demonstrated, while overall men

tended to recover greater total damage awards, juries consistently awarded higher noneconomic

damages to female victims.132 Assuming these findings can be extrapolated to Mississippi

jurisdictions, the noneconomic damages cap has a disproportionate effect on women as

compared to men by reducing the field of damages where jurors, for reasons to be discussed

below, apportioned a large proportion of women’s recovery.133 Because of this disproportionate

effect, Finley argues, a cap on noneconomic damages (like Mississippi’s) constitutes a form of

discrimination against and contributes to decreased access to justice for women. Without going

further, one might counter that this does not constitute discrimination against women because it

merely corrects the propensity of a jury to award higher noneconomic damages to women as

opposed to men; however, Finley goes on to explain why juries tend to allocate a larger

proportion of women’s recovery to the field noneconomic damages. Certain injuries happening

primarily or exclusively to women are compensated predominantly through noneconomic loss

damages.134 These injuries include sexual or reproductive harm, pregnancy loss and sexual

assault injuries, and they impact women through impaired fertility or sexual functioning,

miscarriage, incontinence, trauma associated with sexual relationships, and scarring or 130 Id.131 Id. 132 Id. at 1266133 See generally, Id.134 Id.

disfigurement in sensitive, intimate areas of the body.135136 These injuries and their impacts do

not primarily affect the wage earning capacity of a woman, but they do have a devastating effect

in the form of emotional suffering and lost self-esteem, through an impaired sense of self-worth

and ability to function as a whole person, as well as the inability or decreased ability to maintain

relationships.137 Finley points out that, although these aspects of life hold little economic worth in

the market, they are priceless pieces of life and market-based economic loss damages are

inadequate to compensate for them.138

Noneconomic damages are the tort system’s way of signaling what our society values and

deems worth protecting, beyond what can be measured through actuarial calculations based on a

person’s income and age.139 One set of circumstances Finley points to evidencing the injustice of

the cap on noneconomic damages are those where children die as a result of obstetrical or other

medical malpractice.140 In these situations, parents of these children will have more difficulty

finding lawyers to take their case because the majority of the compensation will be in

noneconomic damages.141 U.S. District Judge Carlton Reeves, Southern District Mississippi,

summarized this succinctly when he reluctantly applied the Mississippi damage cap:

All grief is not equal. All pain cannot be reduced to a one-size-fits-all sum. One

cannot imagine what it is like to know that the doctor right in front of you, the one

who is refusing to insert a chest tube into your body even as nurses beg her to 135 Id.136 Along these lines, as discussed at the onset of this paper, in the 2002 tort reform legislation passed in Mississippi, the state legislature included an exception to the noneconomic damages cap for “disfigurement”, that would have alleviated some of the harshness of the cap on persons suffering this type of injury, as well as scheduled increases in the caps presumably to adjust them for inflation; however, in the more sweeping 2004 legislation, the legislature deleted the exception for disfigurement as well as the scheduled increases in the cap. See, Weems & Weems, supra, § 4:9137 Id.138 Id. 139 Id. at 1279140 Id. at 1280141 Id.

provide that treatment, is causing you to die and killing your unborn baby as you

are helpless to stop her. In Mississippi, though, one’s suffering at the hands of a

health care provider is worth no more than half a million dollars, no matter

how egregious, and no matter if your suffering leads to your death, your unborn

child’s death, and leaves your children orphans. This is offensive.142

AFTERWORD AND CONCLUSION

Up and until this point, I have done my best to remain objective and present each

position and their supporting authorities clearly and as I found them. Now, having presented my

research, I will give you my personal thoughts.

It is difficult to avoid an air of hypocrisy when presenting an attorney’s perspective (*I

should tell you though, I’m not quite yet an attorney) on the issue of tort reform, albeit that does

not deter most from jumping right in. Throughout my three years in law school at the University

of Mississippi, I have had the opportunity to listen to and read about tales from many lawyers

regarding the so-called “golden years” of Mississippi tort litigation. One attorney-friend

recounted how he made $1,200 per week clerking for a defense firm his first summer in law

school. By contrast, I made $500 per week my first summer. Another attorney regaled me with

stories of $50 million-a-year profits, as well as owning his own private jet and ski-resort, and

these are just a couple of my own limited encounters. According to a 2002 National Law Review

article, nine of the nation’s 50 winningest law firms in 2001 were in the state of Mississippi.143

Indeed, then-Senate Majority Leader Trent Lott of Mississippi brought this article up, as reported

by none other than Sid Salter in the Clarion Ledger, in U.S. Senate debate while arguing there

142 Clemons v. United States of America, WL 5364737 (not reported in F.Supp.2d)(S.D. Miss. 2012). 143 Sid Salter, Top 50 Law Firm List Shows 9 in Mississippi, Clarion Ledger (July 28, 2002).

was a medical malpractice crisis affecting the country, citing anecdotal evidence of hundreds of

doctors leaving the state or retiring because of the inability to get affordable malpractice

coverage.144 Senator Lott had Salter’s article printed into the record.145 According to Salter’s

report of the National Law Journal article, these nine firms included such well known

Mississippi firms as: Blackmon and Blackmon at number 12 with six verdicts totaling $171

million, with $100 million coming from a single verdict against Janssen Pharmaceutical, Inc.;

Porter and Malouf out of Greenwood scored $150 million off two verdicts; and former Governor

Bill Allain made the list with a $77.5 million against St. Paul Fire Insurance, just to name a

few.146 It should be noted here that none of these were medical malpractice cases.

I have often lamented, along with some of my other fellow law students, about how, “if

we had only been born twenty years ago,” perhaps we could have joined in on the bonanza.

However, perhaps there is a “silver lining” as far as attorneys go. Phillip W. Thomas, on his

online blog, described a scene back in the early 2000’s when he defended a retailer in the silica

litigation, saying he showed up to a deposition at a hotel conference room and there were

approximately thirty defense lawyers, who did mostly nothing during the deposition, one

plaintiff lawyer, and a stunning amount of time being billed.147 Since then, the number of lawyers

needed to defend cases has dropped considerably, along with the size of the verdicts plaintiff’s

lawyers were taking in, and in turn there has been a great contraction in the legal job market.

144 Congressional Record Vol. 148-Part 11: Proceedings and Debates of the 107 th Congress Second Session at 15303 (July 30, 2002) available at http://books.google.com/books?id=nU4mhnvgdDgC&pg=PA15303&lpg=PA15303&dq=national+law+journal+50+winningest+2002+salter&source=bl&ots=42Xxtq3XXR&sig=Rb3aFe66lACmJI6jbEQDF8-vqlg&hl=en&sa=X&ei=gpVZU5uYJ4Py8QH3kIDQCw&ved=0CCcQ6AEwAA#v=onepage&q=national%20law%20journal%2050%20winningest%202002%20salter&f=false145 Id.146 Id.147 Phillip W. Thomas, MS Litigation Review, (March 5, 2014) available at http://www.mslitigationreview.com/2014/03/articles/general-1/how-much-is-mississippi-legal-industry-revenue-down-since-the-peak/

I know this is not sounding much like a silver lining yet. My point is: those who remain

are the resilient and the hungry (no hungry-lawyer-pun intended). It is not as much about the

money anymore, although it will always, to a certain extent, be about the money. Now that it is

more difficult to make a million dollars as an attorney, at least some of those who were just in it

because of greed, or those of my generation who would have just been in it because of greed, are

not in the game, or at least not playing the game the same way. Perhaps this noble profession can

rediscover itself as what Alexis de Tocqueville called, “the most powerful existing security

against the excesses of democracy.”148 Perhaps it is not the profession that needs to rediscover

itself, but the general public which needs to rediscover that lawyers are in fact the most powerful

existing security they have against the excesses of democracy. After all, the excesses of

democracy are what forced the damages caps down the throats of medical malpractice victims.

Perhaps the profession itself fell victim to its own excesses, and the populace, through the fog of

high-glass law firms, Mercedes, and hundreds-of-millions of dollar verdicts, forgot people

actually do need lawyers. They need us when their freedom is threatened, when their

constitutional rights are being trampled on, when they are about to lose everything, when they

have lost everything, and when they have everything to gain. After all, no one ever complains

about doctors making too much money.149 Data released by Medicare and reported on in early

April 2014 showed, out of $77 billion in Medicare payments for the year of 2012, Medicare paid

$12 billion for 214 million office and outpatient visits, most between 15 and 25 minutes long, an

148 Alexis de Tocqueville, Democracy in America, (1835) available at http://xroads.virginia.edu/~Hyper/DETOC/1_ch16.htm149 Apparently the government even continues to pay them after they are arrested or sanctioned. See Charles Ornstein & Tracy Weber, Even After Doctors Are Sanctioned or Arrested, Medicare Keeps Paying, Pacific Standard Magazine Online (April 24, 2014) available at http://www.psmag.com/navigation/health-and-behavior/even-doctors-sanctioned-arrested-medicare-keeps-paying-79747/ (According to the article, dozens of physicians who received millions of dollars in payments from Medicaid in 2012 had already been kicked out of Medicaid, charged with fraud, or settled claims of overbilling Medicare itself; including one doctor who received $862,000 despite the fact that he was arrested in August 2011.)

average of $57 dollars a visit.150 Apparently, much of Medicare spending is concentrated on

about two percent of doctors who account for about $15 billion in Medicare payments, roughly a

quarter of the total.151 Where is the public outcry? Where is the political movement for reforming

healthcare cost and medical billing? I can hear them now: “Oh they deserve that money, and

think about how long they went to school. Doctors help people. We couldn’t live without them.”

I suppose my hypocrisy knows no bounds.

I don’t want to point any fingers at doctors, however. (God forbid, I may get sick

tomorrow!) The blame for the malpractice insurance crisis certainly didn’t belong to the

physicians, and they only lobbied for tort reform because insurers were raising their malpractice

premiums so high they were at risk of losing their livelihoods. Regardless of the role

Mississippi’s tort system played in influencing medical malpractice insurance premiums, a much

broader, more sinister issue is raised in my mind. Medical Assurance Company of Mississippi

(MACM) covers at least 75% of physicians in the state.152 As cited above, MACM sent a letter to

physicians in 2002 notifying them they were going to raise their rates by fort-five percent due in

part to Mississippi’s legal climate.153 Vidmar and Brown added emphasis to the words in part to

point out to the reader that even MACM tacitly admits there was something other than the legal

climate affecting malpractice insurance rates.154 As has been discussed thoroughly, many legal

and insurance scholars, and even the United States General Accounting Office, have provided

empirical data to show rates were primarily affected by forces other than malpractice suits and

150 Reed Abelson & Sarah Cohen, Sliver of Medicare Doctors Get Big Share of Payouts, The New York Times (April 9, 2014) available at http://www.nytimes.com/2014/04/09/business/sliver-of-medicare-doctors-get-big-share-of-payouts.html?_r=0151 Id.152 Gallegos, supra; See, Behrens, supra153 Julie Goodman, Premiums Rise by 45%: Insurance Group's Hike Comes As Doctors Seek Relief, Clarion Ledger, 1A (September 22, 2002).154 Vidmar & Brown, supra at 10.

payouts. The way it played out in 2002-2004 was simple and disturbing: insurers, who had lost

money as a result of competition among other carriers, over-investment, medical inflation, and

actuarial miscalculation, flexed their muscle by extorting physicians155 and in-so-many words

telling the legislature to either cap medical malpractice damages or they simply wouldn’t write

insurance156 (at least any insurance doctors could afford.) Like the days of old when Carnegie

and Rockefeller monopolized their industries, vanquished their foes and set their prices, the

soulless (wait, aren’t corporations people too?) Mississippi insurance companies enjoy a lack of

competition, an unlimited demand for their product, and an unwillingness of government to reign

in their robber-baron piracy.

Is there change on the horizon? I do not pretend to be clairvoyant, but some jurisdictions

are split regarding the constitutionality of a cap on noneconomic damages. In 2013, the federal

5th Circuit Court of Appeals upheld Mississippi’s noneconomic damages cap in the face of

constitutional challenge.157 Learmonth argued § 11-1-60(2)(b) invaded the jury’s exclusive

sphere by revising downward any noneconomic damages finding in excess of $1 million.158 The

court admits, at first blush, the statute’s limit on the jury’s act of “awarding” noneconomic

damages might appear to interfere with the jury’s fact finding procedure.159 However, the court

rationalizes by saying it does not “believe” the legislature used the term “award” in the technical

or legal sense of finding a damages amount.160 (Plain-language-be-damned, apparently.) Because

155 See Pamela Berry, Doctors Turning to Last Result, Clarion Ledger, at 10A. (July 21, 2002). “doctors said they were told by many companies that the skyrocketing premiums were the result of large jury verdicts being handed down against physicians in Mississippi.”156 See Patrice Sawyer, Insurers: Claims Causing Losses, Clarion Ledger, at 1B (June 22, 2002). “I think what it’s going to take is meaningful changes to our civil justice system to get insurance companies to return to the state and start writing insurance.”157 Learmonth v. Sears, Roebuck and Co., 710 F. 3d 249 (5th Cir. 2013)158 Id. at 259.159 Id.160 Id. at 260

a jury who is not aware of the $1 million limit cannot apply it when determining damages, the

court explains, it does not invade the jury’s fact finding process.161 Because it is the judge who

reduces any award to comply with the cap, the statute is in comport with the judge’s role of

applying the law to the jury’s factual findings.162 Feeling sick-to-your-stomach yet? After a bit of

arduous and tortured reasoning, the court finds a way to uphold the cap, in holding, because the

statute provides legal effect shall not be given to a jury’s noneconomic damages finding to the

extent the finding exceed $1 million, the legislature has not invaded the jury’s fact-finding

role.163 To put it in lay terms, the legislature isn’t invading the jury’s fact-finding role; they are

simply ignoring the facts found by the jury found if they find damages for the plaintiff in excess

of $1 million. Simply brilliant.

The Florida Supreme Court went the opposite direction in response to a certified question

from the federal 11th Circuit Court of Appeals. (Which the Mississippi Supreme Court passed on,

effectively upholding our cap.) In Estate of McCall, the Florida Supreme Court held Florida’s

cap on noneconomic damages violated the Equal Protection Clause of the Florida Constitution

under the rational basis test (the most lenient of constitutional-scrutiny-tests).164 According to the

court, the cap imposed unfair and illogical burdens on injured parties when an act of medical

negligence gives rise to multiple claimants.165 Under those circumstances, they reason, medical

malpractice claimants do not receive the same rights to full compensation because of arbitrarily

diminished compensation for legally cognizable claims.166 Furthermore, the cap on wrongful

death noneconomic damages does not bear a rational relationship to the stated purpose that the

161 Id.162 Id.163 Id. at 261164 Estate of McCall, 39 Fla. L. Weekly S104, WL 959180 (Fla. 2014).165 Id. at 4.166 Id.

cap is purported to address, the alleged medical malpractice insurance crisis in Florida.167 Taking

a page from Mississippi legislators, the Florida legislature attempted to justify the cap by

claiming, “Florida is in the midst of a medical malpractice insurance crisis of unprecedented

magnitude.”168 (Oh, how I hate political talking points.) In a bold move, something our own state

court could learn from, the Florida Supreme Court, having reviewed the factors and

circumstances, concluded the Florida Legislature’s conclusion as to the existence of a medical

malpractice insurance crisis was not fully supported by available data.169 Instead, they go on to

say, the data shows the numbers of physicians in Florida had actually increased in both

metropolitan and non-metro areas despite claims by proponents of the cap that doctors were

fleeing the state.170 The court went on to recognize, despite claims of runaway juries, jury trials

constituted only a very small portion of medical malpractice payments with only 7.5% of

verdicts of $1 million or more over a fourteen year period involving a jury trial verdict.171

Furthermore, 10.1% of settlements of $1 million or more were resolved without any legal action

ever being filed, according to the study cited by the court.172 Not only did jury trials constitute

only a small portion of settlements, but settlements following verdicts tended to be substantially

less than the amount awarded by the jury.173 Finally, the court acknowledged factors other than

malpractice payouts to victims were contributing to malpractice premiums increases, specifically

including the opinion of Joanne Doroshow, Executive Director of the Center for Justice and

Democracy which stated, in part:

167 Id.168 Id.169 Id.170 Id.171 Id. at 210.172 Id. and See Neil Vidmar, Kara MacKillop & Paul Lee, Million Dollar Medical Malpractice Cases in Florida: Post–Verdict and Pre–Suit Settlements, 59 Vand. L.Rev. 1343, 1345–46 (2006).173 Id. citing Vidmar, MacKillop & Lee, supra, at 1381.

“this so-called “crisis” is nothing more than the underwriting cycle of the

insurance industry, and driven by the same factors that caused the “crises” of in

the 1970’s and 1980’s. . . . with each crisis, there has been a severe drop in the

investment income for insurers, which has been compounded by sever [sic]

underpricing of insurance premiums in prior years. . . . Then. . . .when investment

income drops, either due to increases in interest rates or the stock market, or due

to low income resulting from unbearably low premiums, the insurance industry

responds by sharply increasing premiums and reducing coverage.”174

Sound familiar? I thought it might. As for Mississippi’s caps, it looks like they are here to

stay, unless the Mississippi Supreme Court or United States Supreme Court decides to take on a

challenge. So, to see how the rest of the story plays out I suppose you will have to, to borrow a

phrase from Mr. Salter, stay tuned.

174 Id.