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Doubts cloud pool concept for medical malpractice relief

JACKSON — Gov. Ronnie Musgrove’s promise to call a special session late this summer to address the medical malpractice crisis has raised eyebrows in the medical community.

At the Mississippi Economic Council annual meeting on May 21, the governor told more than 1,000 business leaders in the state that he is looking at “some innovative ideas that will offer our health care providers stable and affordable insurance.”

“This is about more than just civil justice reform,” he said. “It is about ensuring access to quality health care for the people of Mississippi.”

Speculation swirled that the governor’s proposal would include some type of self-insured risk pool to provide insurance for doctors who are having a difficult time obtaining routine medical malpractice insurance.

“A pool is a dead duck,” said Dr. Hugh Gamble II, a Greenville physician and past president of the Mississippi State Medical Association (MSMA). “The state can’t afford it. We asked the governor who was going to fund this and he said ‘doctors.’ Every major insurance carrier in the state is saying they can’t stay solvent in this environment, so we’re going to have a state-run agency provide insurance? If you’re going to do that at premiums below what commercial carriers are charging, who’s going to pick up the tab?”

A spokesperson for the governor emphatically said: “It is not a type of self-insured risk pool.”

On June 5, Musgrove outlined an aggressive schedule with House Speaker Tim Ford and Lt. Governor Amy Tuck. Last week, Musgrove unveiled the concept to a small group of physicians, plaintiff attorneys and legislators. On June 13, the special joint Senate-House Committee on Tort Reform met for the first of successive Thursday meetings until a solution is determined.

“Healthcare is vital to Mississippi,” said Musgrove. “I will use every resource of my office to resolve the crisis of medical malpractice insurance availability and cost for our doctors.”

Even though state leaders agree there is a medical malpractice crisis, they have not agreed on the reasons for the problem.

“I don’t know what all the solutions are but we have a problem,” said Tuck. “I want to put the people and process in place to fix it.”

If the crisis is not resolved by this fall, the Mississippi State Medical Association (MSMA) has stated that 10% to 15% of Mississippi physicians will lose insurance coverage.

“Like with any cure, there are no quick fixes,” said Tuck. “It will take bringing the right people together from all sides to find a common solution. It will also take focused research, cool heads and rational discussion. And it will take sticking to a regiment to help our state recover.”

Mississippi insurance commissioner George Dale said he is pleased the governor is working on a solution.

“I told the governor several months ago that we were fast approaching a serious problem with medical malpractice and business problems relating to insurance,” Dale said. “He’s been meeting with medical and business groups and is well aware of the seriousness of the problem.”

A gubernatorial spokesperson insisted the proposal “is not new. The governor has been working on this for at least six months.”

Dale, who hadn’t seen the governor’s proposal at press time, said he was told it was “still a work in progress.”

“The only other place in the U.S. that I know of that’s probably worse off than Mississippi is West Virginia,” Dale said. “When the governor of West Virginia called a special legislative session, legislators couldn’t agree on anything, so they came up with a state-run pool, which shifted the burden from the free enterprise system to the state.

Less than a month ago, the insurance commissioner there told me that the taxpayers of West Virginia were not aware that they were now in the insurance business. The discussion is this: how can government do a better job than the free enterprise system? If there are problems in the free enterprise system, you’re just going to transfer them to government. Why not evaluate the problems and make improvements to them so the free enterprise system will work?”

Gamble said a risk pool, no matter what it’s called, is “a band-aid fix that won’t fix anything.”

“The experience of other states has shown that,” he said. “Pennsylvania just went through this same thing setting up a state injury compensation pool. It’s not a risk pool. It’s just there to compensate victims for excess amounts. It went bankrupt in about four or five years and they’re right back in the soup. The dilemma is that it was also a physician-funded pool. As a doctor, you paid to the pool and for liability insurance.”

Charles M. “Chuck” Dunn, III, COO and vice president of claims for the Medical Assurance Company of Mississippi (MACM), said a sister organization of MACM, the Medical Insurance Exchange of New Jersey, would probably shut down soon.

“Many other states are now in a crisis environment,” he said. “This is not about bad investments. We haven’t had any bad investments.”

Dr. Briggs Hopson, clinical medical director of River Region Health System in Vicksburg, said the best state program for Mississippi would be similar to the one in California.

“Dr. Richard Corlin, president of the American Medical Association, told us that since the California Legislature passed legislation in 1991, their premiums have held steady,” Hopson said. “He’s a gastroenterologist and pays about $4,000 a year in premiums for medical malpractice. Our gastroenterologists pay about 10 times that amount.”

Any insurance mechanism established now would require substantial surplus and capital to back up premium volume, Dunn said.

“The problems we’re experiencing are claim frequency and claim severity, which another insurance mechanism doesn’t address at all,” he said. “In the last seven months, there have been verdicts in liability cases of $3.5 million, $5 million, $7.1 million, $12 million and $23 million. What risk pool can withstand that kind of pressure?”

In May, 163 medical malpractice lawsuits were filed in Mississippi, representing 6% of insured physicians, Dunn said.

“We have to hire attorneys to defend every physician,” he said. “Over half the physicians we insure have at least one pending lawsuit. What addresses the issue of lawsuit abuse?”

The MSMA has been seeking more traditional types of action, such as capping contingencies and non-economic damages, eliminating joint and several liability and venue shopping and establishing a binding arbitration standard.

“We’re not asking for elimination of collateral source rules, periodic payment, advance notice of claims, an improvement in the statute of limitations, or definition of expert medical testimony,” said Gamble.

But one fact seems certain: the special session will not address tort reform.

“The question that’ll be put to us is, ‘where are you going to compromise?’ We already have compromised,” said Gamble.

Contact MBJ contributing writer Lynne W. Jeter at (800) 993-3392 or lwjeter@yahoo.com</a.

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