Wednesday, Jan. 23, 2002
Trial lawyer has say on proposed tort reform'
To the editor:
The escalating rhetoric in the "tort reform" battle poorly defines the sides. It appears, at first blush, to be business and doctors versus trial lawyers; at least, that is what the public is incorrectly being led to believe. The battle really pits insurance companies against Mississippi citizens. The alleged nationwide withdrawal of St. Paul Insurance Company from the medical malpractice insurance market is a perfect example. Every analyst agrees that St. Paul miscalculated its premium calculation (called "underwriting") and then lost money in the stock market, like many insurance companies did. St. Paul's threat to pull out of Mississippi has nothing to do with malpractice jury verdicts, where Mississippi still ranks below the national average. Further, if St. Paul is discontinuing its practice of writing medical malpractice coverage nationwide, it can't have anything to do with medical malpractice verdicts in Mississippi. Finally, we should all watch St. Paul closely and see whether they actually do discontinue writing this very profitable type of insurance business.
Recent hearings before the insurance committees of the Mississippi legislature made the point very clear. Dozens of editorials driven by insurance propaganda did not change the facts. Dr. David Meredith of Jackson (also a lawyer) cited statistics from government documents and insurance company web sites documenting their profitability and testifying as to the conspiracy of misinformation. Consumer representatives also provided uncontested data proving that the number of doctors per capita in this state has continued to rise, even after identical accusations of mass retirement and departure were published in the mid-1980's during a similar economic downturn.
In the mid-80's, many doctors were having difficulty finding affordable coverage. I do not doubt that a similar problem exists for them today. In the 80's, the insurance companies convinced the doctors that costs were being escalated by an explosion in litigation and claimed that frivolous lawsuits and out of control juries were forcing them to make insurance unaffordable or unavailable. Back then, they told state legislatures around the country that the only way to ease the crisis was to enact tort reform to make it more difficult for sick and injured consumers to sue and be compensated by wrongdoers. Sound familiar? The data presented to the insurance committees on Dec. 19 showed that states with compulsory caps on compensation do not provide insurance premium relief for doctors or anyone else. In fact, in California, where the greatest medical tort reform occurred, rates increased 37 percent at a time when national insurance rates increased less than 6 percent.
Moreover, insurance commissioner George Dale and state medical association president Hugh Gamble both agreed that the proposed limits on compensation will not likely reduce insurance premiums. Medical Assurance Company of Mississippi, the leading insurer of doctors in this state, wins 90 percent of their trials and made $7 million in profit last year. This information can easily be ascertained by simply checking its Web site. If there is a crisis, then there can be no doubt that it is a self-inflicted phenomenon caused by the mismanaged underwriting practices of the industry itself.
The nursing home industry has also jumped on the tort reform band wagon. A recent editorial from the Delta Democrat Times stated that in 1999 "the state had 17 companies who were writing policies for nursing homes. There are only three now, and, according to Gamble, they have no intention of renewing their policies " The nursing home industry is quietly trying to insulate themselves from accountability under the guise of tort reform as well. Meanwhile, the statistics sadly illustrate the pathetic level of care provided in Mississippi nursing homes. An October 2000 state-by-state comparison found a dramatic rise in facility deficiencies in our state since 1997. Over the last three years, there have been substantial increases in seven quality of care areas. Perhaps the most staggering figure is the fact that nearly 60 percent of the homes in our state were cited for violating sanitary standards. In 1999, Mississippi led the nation in accident violation with nearly 250 percent more violations than the national average. It would be unconscionable and a grave disservice to our elders to allow the industry the "reforms" it seeks.
Is there any good news? Yes. The supervisor of the Mississippi Public Employees Health Insurance plan, Therese Hannah, provided some excellent news that did not get published in this or any other paper that I read. She testified that Mississippi had the lowest health insurance premiums in the country and Mississippi pays the lowest percentage of its budget for state employee health insurance. Here is one area where Mississippi is ranked first.
After testifying at the recent hearings, I was asked by a member of the committee whether the Mississippi Trial Lawyers Association would support any "tort reform." I responded by telling him that is depends on how you define "tort reform." If tort reform means dismantling a judicial system which has worked better than any system on the planet for hundreds of years and continues to do so, then the answer would be no. On the other hand, if by tort reform you mean supporting anti-secrecy legislation which would prevent companies like Firestone and Ford from keeping secret wrongful death settlements then the answer is yes. If by tort reform you mean passing legislation that allows the families of patients in nursing homes to install cameras to monitor the treatment of their loved ones, the answer is yes. If by tort reform, you mean passing legislation which would require physicians to disclose to patients any disciplinary procedures, the answer is also yes.
The next time someone asks if you are in favor of tort reform, be sure you know how they define it before you answer.
David W. Baria
Mississippi Trial Lawyers Association