Ask people, “What is tort reform?” and you can find that there isn’t even basic agreement on what constitutes tort reform.
One type of tort reform being promoted involves damage caps on non- economic and punitive damages. But recently when a Coast labor union joined doctors and the Jackson County Chamber of Commerce, the emphasis was on “health care/legal reform.”
Since labors unions have traditionally opposed tort reform, what does it mean to see the International Brotherhood of Electrical Workers (IBEW) Local 733 join the chamber and Singing River Medical Society to advocate reform? Chico McGill, business manager of the IBEW Local 733 on the Coast, said the labor union’s interests are separate from the interests of business and industry.
“Let’s separate what our interest is from the general interest,” McGill said. “Our interest is simply the health care side of things.”
McGill, who is also chairman of the Mississippi AFL-CIO health care reform committee, said that the AFL-CIO representing 30,000 members in Mississippi has passed a resolution advocating health care reform. A large part of the impetus for labor to get involved is concerns about availability of health care. For example, some obstetricians on the Coast, including four in Ocean Springs, are losing their malpractice insurance, and no insurance companies are writing new policies in Mississippi.
“I have young members that are starting families who will not be able to find health care providers,” McGill said. “That is why labor has stepped up to the plate. We are concerned about this impact and how it affects our ability to negotiate good health care benefits with industry. If doctors are having to leave the state because this place is open season on doctors, then we all have a problem. Our position is that health care reform needs to happen. Things impacting doctors ability to practice in the state today need to be addressed.”
McGill admits that it is difficult to separate “tort reform” from “health care/legal reform.”
“It’s a fine line, but you have to start somewhere,” McGill said.
David Baria, president of the Mississippi Trial Lawyers Association, said scare tactics are being used to make people think they won’t be able to get health care unless tort reform is adopted.
“The other side is smart,” Baria said. “They put doctors out front, try to make it about health care, and have frightened the stew out of people. No one wants to live in a place without doctors.
“The spin machine of big business and industry is working so effectively that they have convinced the people who would be most harmed by tort reform that they should get on board with tort reform. When you see labor marrying itself to big business, then there is a problem because labor unions were formed to protect workers from abuses by big business.”
Baria says the problems with availability of malpractice insurance are cyclical: the lack of availability of malpractice insurance happened in the mid- 1970s, again in the 1980s, and is now happening again in 2002.
“My question is why should we overhaul and completely change our tort system when what is happening is proven to be cyclical?” Baria asks. “Why should we take away rights of people that they will never get back particularly when it has been shown that taking those rights away doesn’t provide lower insurance rates or greater availability of coverage?
“Someone needs to demonstrate to me, the Legislature and the citizens of state that tort reform as currently defined and discussed actually solves a problem. You have to figure out what your problems are. Once we figure out what the problems are, for example, doctor’s difficulties getting malpractice insurance, then let’s find out how we can fix those problems. No one has demonstrated that tort reform will fix the problem.”
Dr. Jeffrey Laseter, president, Singing River Medical Society, doesn’t buy the argument that the current lack of availability of malpractice is due to anything other than problems with the legal system.
Loss of doctors
“The problem we have had is the system has been out of sync for so long that now a crisis situation currently exists in the state,” Laseter said. “We’ve lost 10% of the practicing physicians in the state in the past year alone. There are a number of areas in the state with no OB physicians. We have no continuous neurosurgery coverage north of Jackson. Many emergency room, OB and other physicians are in danger of moving or closing in the next few months. This will have a direct effect on the availability of health care for the residents of Mississippi. There is potential for residents to not have adequate medical care with catastrophic consequences. This situation can only get worse, and people are going to suffer and possibly die because of lack of health care.”
Laseter said that the reason why malpractice insurance companies are pulling out of Mississippi is that for every dollar collected in premiums in 2001, insurance companies paid out $1.80.
As for allegations about frightening the general public, Laseter said it isn’t only the public that is concerned.
“Physicians are scared to death,” he said. “They are trying to do everything they can to stay in Mississippi, but they may not have a choice. You are talking about a large community, Ocean Springs, without any OBs.”
Laseter was harshly critical of the Legislature for not passing tort reform in the past session, and doesn’t believe legislative leaders or the governor are doing enough to address the problems. Gov. Musgrove has appointed a legislative task force on tort reform and has said he will call a special session if the task force can come to an agreement.
There is no guarantee the governor will call a special session, Laseter said.
Special session too limited
“If he was serious about doing something about this problem he would call the session now and let legislators deal with the situation,” Laseter said. “But he is basically playing to the crowds and the plaintiff attorneys.”
Another critic of the governor’s approach is Jerry McBride, president, Mississippi Manufacturers Association.
“We do not support a narrow special session such as the governor has proposed,” McBride said. “It is a special session to develop an insurance pool. A limited scope special session will not solve the problems. We’re losing doctors, we’re losing jobs, and the citizens of Mississippi are having to paying a ‘tort tax’ to support out-of-control legal system that we have. You know there is something wrong with your system when you are gaining lawyers and losing doctors.
“We’re certainly pleased that the AFL-CIO and labor unions on the Coast see the significance of the problems that we have. The business community has been working on this issue for some time, and we believe it very negatively affects everyone in the state — employees, businesses and the medical community alike.”
When it comes to specifics about what is meant by tort reform, business and industry have long supported caps on punitive damages and non-economic damages.
Terry Carter, president of the Jackson County Chamber of Commerce, said in addition to damage caps, the venue problem needs to be addressed. That refers to lawyers shopping for counties where juries may be favorable to their case. Another item on the wish list for tort reformers is changing product liability laws so that resellers would be immune from having lawsuits filed against them when they have no control over the manufacturing or production processes.
Carter said a recent lawsuit in Holmes County had only one plaintiff out of 22 from that county
d only one defendant out of 66 from the county. This was a result of “venue shopping” for the most favorable jury to the client’s case.
“This has encouraged plaintiff law firms outside of Mississippi to establish p