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Tort reform or judicial nullification?

Never has a climax had the potential for such a letdown.

In a year that began with a swell of grass-roots support for tort reform in Mississippi, with “white coats” lobbying the Mississippi Legislature on the steps of the Capitol and a record number of state associations joining Mississippians for Economic Progress in a call for change in the state’s litigious legal climate, Mississippians should have had a chance to relish their victory when the medical malpractice bill was signed into law by Gov. Ronnie Musgrove on Oct. 8.

The governor even extended the year’s third special session, which began Sept. 5, to consider providing businesses additional lawsuit protection.

But, even as this issue went to press last week and the governor was expected to sign a tort reform measure addressing business and industry concerns, the attempt to undo the medical malpractice tort reform bill was beginning.

An unheeded warning

During legislative hearings on tort reform in August, Katherine Kerby, president of the Mississippi Defense Attorneys Association, testified before a joint legislative committee that new tort reform laws could come under court challenge in Mississippi as they have in other states — and be overturned. Roughly 24 states have the same access-to-courts provision as Mississippi; approximately half have been upheld and the other half has not. She handed legislators draft legislation — new statutes — that other attorneys, not trial lawyers, had prepared after researching “successful” constitutional provisions in other states.

“First, we wanted to make it a simple procedure for them,” said Kerby. “Second, we handed them a package of information on how to go through the merit selection of judges, which is very detailed and has around 60 people that help select nominees. It gets rid of the system we have now. But a third and very significant aspect of why I testified was I wanted to outline for them the dangers of passing anything that is a tort reform law, whether med mal or general business, and being very careful about its constitutionality. I was trying to warn them ahead of time to pre-empt what I knew would be a long, expensive court fight, but just as important, warn them about the instability in the economic environment brought about by an undecided issue of law. If you do it, you get rid of the fight on the front end so we can get back to the business of economic development and get folks here jobs.”

Despite Kerby’s warnings about judicial nullification, legislators left those constitutional provisions intact in the new legislation.

Sure enough, trial lawyers made use of the loophole and immediately took action to nullify the legislation while perceived tort reform opponent and presiding Supreme Court Justice Chuck McRae is still sitting on the bench.

“We fully expected them to do that,” said John J. Cook, M.D., president of Mississippi State Medical Association and medical director of the emergency room at Rankin Medical Center. “It’s been done in every state that has passed tort reform…and we fully expect them to pull out all the stops and use every recourse they have to try and invalidate a good bill.”

Shifting gears

Mississippi is tracking Alabama, said state insurance commissioner George Dale.

“Alabama had a tremendous problem in its civil justice system and business got busy and went out and changed the Legislature, they changed the governor, they passed tort reform legislation but it went to a plaintiffs-dominated Supreme Court, which ruled that all of those laws were unconstitutional,” said Dale. “They realized it wasn’t over yet, so business went back again and changed the Alabama Supreme Court. Now it’s pro-business and nothing’s been challenged. There are already challenges being made to any civil justice reform that the Legislature’s going to pass. The question will be: is there a business majority on the Supreme Court?”

Another question has arisen: Did legislators purposely leave those constitutional provisions intact in the new legislation to provide a loophole for the Supreme Court?

“I wouldn’t say that they purposefully wrote the legislation so that it could be contested in court,” said Cook. “That would be a stretch. I wouldn’t put it past some of the members to do that, but as a whole, I think it was more an oversight than anything else.”

Kerby isn’t as convinced. “I did ask somebody, ‘Why did y’all do that?’ and the response I got was, ‘Oh, we’ll let those folks across the street deal with it,’ meaning the Supreme Court,” she said. “But my guess is politically that committee chairmen couldn’t get the two-thirds required vote for a constitutional amendment.”

No time to kill

It may take years before the Mississippi Supreme Court has to make a ruling. With McRae leaving the bench, and business-friendly Jess Dickinson stepping up, voters are making known their pro-business stance.

“There’s a good chance of making it stick,” said Cook. “The suit has to be filed and we don’t know if it will be filed as a grievance against nursing homes or against a patient, say, in a malpractice case. We have no idea how it will play out. There’s a chance the Supreme Court may not even hear it when it gets there. It’s got to meander through all the various courts before it gets to the Supreme Court. It can’t be filed and immediately jump to the Supreme Court. We feel it will be a lengthy process. In fact, in one state, it took five years before the Supreme Court heard it.”

The situation may stymie economic development, said Kerby.

“Economic developers coming in may say, ‘sure you passed tort reform, but gee, it’s stuck in courts for five or 10 years,’ and that doesn’t help economic development,” she said. “You’re not going to be able to recruit until the issue is stabilized.”

Kerby, a Columbus attorney, added: “Up here in the backwoods, we’re the ones that lose the doctors first. We’re the ones that lose the business opportunities first. If you’re going to do reform, do the real thing instead of the hoped-for thing.”

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

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