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Tort reform no guaranteed cure

Tort reform prospects in the Mississippi Legislature remainunclear, but a Lincoln County lawmaker-attorney says physicians'”all or nothing” attitude contributed to inaction during thisyear’s session.

Dist. 53 Rep. Bobby Moak, D-Bogue Chitto, said six days ofhearings were held last summer prior to this year’s session inwhich a package of eight tort reform measures was introduced.

Citing testimony from insurance officials, Moak said thehearings produced no evidence that tort reform would lowerinsurance rates.

Further testimony, Moak said, indicated that insurance premiumswere rising so companies could make up for revenue lost in avolatile stock market. Those losses followed a period of heavycompetition and lower insurance rates among the companies.

“They were competing with each other and cutting costs to getbusiness,” Moak said.

Also, Moak said companies were raising premiums to recover fromthe Sept. 11 attacks and to cover re-insurance costs from companieslike Lloyd’s of London.

One area the hearings didn’t cover fully was the issue of”capitation,” Moak said. Through that, he said, insurance companieswere able to put limits on how they would pay doctors for variousprocedures.

“The insurance companies found a way to wedge themselves betweenthe patient and the care giver,” Moak said.

While medical-related tort reform measures failed, Moak saidcivil justice action affecting other business sectors succeeded. Headded, though, that those measures have received great play in themedia.

One measure passed involved reducing liability for utilitycompanies regarding poles placed on public roads.

Another measure addressed the issue of “stacking.” That is alegal practice of attaching an insurance coverage claim to adefendant’s other vehicles even though they may not be the onedirectly involved in an accident.

Moak cited an instance in which a utility company’s fleet of 167vehicles were “stacked” onto a claim to boost the potentialliability amount. This year’s measured reduced the maximum numberto 10.

“That was a huge step,” Moak said. “That can affect everybusiness that has in excess of 10 vehicles.”

Moak also cited a measure that does more to protect IndividualRetirement Account savings. The lawmaker said those measures passedeven though there was opposition to them.

“They were all tort reform and they were all contentiousissues,” Moak said.

Regarding medical-related tort reform, Moak said a compromisehad been in the works since August and was about 85 percent closeto reality. However, he said some members of the medical community- specifically doctors – were unwilling to budge.

“The doctors wanted all or nothing,” he said.

Moak said he believes the medical community could have gottenlimits on malpractice punitive damages, venue protection andarbitration. He added there was even talk of product liabilitylimits.

Proceeding on the legislation without agreement creates thepotential for a “wild card” situation and “skewed balance one wayor the other,” Moak said. He indicated there is too much potentialfor changes once a bill is in the legislative process.

“Doctors may like it going in, but they may not like it once itgets through the process…,” Moak said. “On an issue like this,all parties need to sit down and come to an agreement.”

Dist. 92 Rep. Jim Barnett, a retired physician, offered adifferent view from Moak about the state’s lack of tort reform.

“It’s a horrible situation we’ve gotten ourselves into,” saidBarnett, who disagreed with Moak about the doctors’ “all ornothing” approach to tort remedies.

Lawmakers will be taking another look at tort reform prior tonext year’s session. Lt. Gov. Amy Tuck and Speaker of the House TimFord last week announced the formation of a joint committee tostudy tort reform.

Tuck said the committee will have 10 members each from the Houseand Senate. She expected the committee to begin holding hearings inJune.

“We hope through these hearings to look at all facets anddetermine the magnitude of the problem,” Tuck said. “Everyone isapproaching this with an open mind.”

Tuck said the committee will study the problem and come up somerecommended solutions.

“That’s the goal of our hearings: to see where we are and gofrom there,” Tuck said.

Paul McLain, director of the Lawrence County CommunityDevelopment Association, said that, although the association hasnot taken a side on tort reform, he is glad to see the legislatureaddressing the issue.

“I was very gratified to see the legislature has established acommission to look at this during the summer to possibly draft apackage for the next session,” he said.

McLain said he recognizes the need for something to be done toease the situation for not only doctors, but businesses as well.However, “tort reform may or may not be the answer. That’ssomething they need to look at.”

While Moak said he hoped to be named to the special legislativecommittee, Barnett was skeptical of its chances to accomplishanything.

“It looks good to have a special committee, but I think we’rejust about committeed out,” Barnett said.

Some tort reform proponents are lobbying for a special session,but Barnett said lawmakers can’t act if a measure is not broughtout of committee during the gathering. Gov. Ronnie Musgrove hassaid he would call a special session if an agreement can be reachedduring the special committee hearings.

Barnett said he has received assurances the tort reform issuewould be brought up next session.

“I’m very pessimistic about anything being done before then,”Barnett said.

Moak said legislative action that would totally shieldphysicians too much from liability will not happen. He said theremust be a balance between a person’s right to seek legal action andlimits on liability for doctors.

“You can’t just limit damages, period. That skews it too far inone direction,” Moak said.

In the past, Moak said he has voted with doctors and nursinghomes on issues affecting them. In the latest legislative battle,he offered his backing on measures such arbitration, some productliability, a two-year statute of limitations to bring actionagainst a nursing home and limitations on punitive damages inmedical malpractice cases, possibly even up to $500,000.

“I’m a trial lawyer and can support that, but we’ve got to getto the table and work these things out,” Moak said. “They’ve notbeen willing to do that.”

In the future, Moak expected sectors of the medical community -hospitals, nursing homes and doctors – to split, with the groupsconcentrating reform efforts on issues that affect their respectiveareas. That would be a departure from this year when the physicianslobby took the lead and tort reform measure failed, Moak said.

Moak said rising insurance rates are not limited to Mississippior just doctors. Referring to reasons mentioned earlier, he saidrates are going up for citizens and businesses in Mississippi andother states.

“It’s not just the tort climate,” Moak said.

Moak cited an April 8 walkout by Texas doctors to protestmedical malpractice insurance rate hikes in that state. He said asupportive legislature passed tort reform measures when George W.Bush was governor, yet doctors were now striking in what isconsidered one of the model states for tort reform.

Moak referred to a Center for Justice and Democracy pressrelease that responded to an American Insurance Associationstatement that tort reform was no guarantee that malpractice rateswould drop. CJ&D Executive Director Joanne Doroshow hailed theadmission in the press statement.

“Now that we’re all in agreement, can we please recognize ‘tortreform’ for what it is – an insidious movement that has hadterrible consequences for many innocent people, while doing nothingto improve the affordability of liability insurance for businessesor professions,” Doroshow said.

Regarding other states, Moak recalled a recent meeting with aPennsylvania state lawmaker who was pushing for tort reformmeasures there. Moak said the northern state legislator was seekingtort reform that resembled what Mississippi passed in the early1990s.

Mississippi measures included reducing the statute oflimitations to bring lawsuits against medical providers from sevenyears to two years or lower in some instances. The measures alsoaddressed joint and several liability issues.

Moak said a bill to reduce the statue of limitations for anursing home lawsuit from three years to two years has been in hisjudiciary subcommittee for several years. He said he has notbrought it up because there has not been a major push for it.

Still, Moak said this year’s business-related measures and theearlier medical tort reform action shows that the issue has beenaddressed by the legislature.

“It’s not like something hasn’t been done,” Moak said.

Editor’s note: Friday’s story will conclude the series witha look at other possible effects of a lack of tort reform andcommunity officials’ response to recent criticism of the state’slegal climate.