Tort reform has made a significant impact on Mississippi
by Ted Carter
Published: May 9,2014
A May 14 conference at the Jackson Convention Complex will spotlight the 10th anniversary of an overhaul of Mississippi’s civil justice system, an achievement business leaders say saved the state’s medical sector and polished the state’s image as a place to do business.
What you won’t hear at the “Tort Reform: After Ten Years” seminar are the criticisms of personal injury lawyers and victims advocates who say the 2004 legislation slammed shut the courthouse doors to Mississippians who suffer at the hands of incompetent medical professionals or businesses that neglected the safety of their workers, customers and the general public.
The so-called tort reform reset the competitive balance so that today “you almost have to have the wrong leg cut off or let someone expire as they are gasping for air” to initiate a worthwhile action, said John Giddens, a Jackson personal injury lawyer who noted he is struggling to recover damages for the victims of the Rose Cancer Center in Summit, where medical professionals watered down chemo medications to increase profits.
“Tort reform, particularly the special exceptions for the medical industry, has helped allow criminals like Meera Sachdeva to get away with intentionally hurting Mississippi families battling cancer,” he said of the clinic proprietor who is now in prison.
“Imagine discovering your wife or mother or child were treated with watered down medications and allowed to needlessly suffer and die, or contracted Hepatitis C,” Giddens added.
“The civil lawyers defending Rose Cancer Clinic have, in this instance, an economic advantage and can and did use the hurdles tort reform ushered in, protecting criminal conduct under this umbrella.”
Dr. Sachdeva and two others were convicted in late 2012. Sachdeva was sentenced to 20 years in federal prison and ordered to pay nearly $8.2 million in fraudulent Medicaid claims after pleading guilty to one count of health care fraud and two counts of making false statements, the Associated Press reported.
Supporters of the civil justice revamp can point to far lower medical malpractice premiums for physicians and Mississippi’s business growth, including the enticing of Toyota to set up a factory in Blue Springs, a move the Japanese automaker has said it would not have made had the state not enacted the restrictions on personal injury lawsuits.
Expect the seminar to be a celebration of sorts, said Neely Carlton, general counsel to the Mississippi State Medical Association and former state senator.
Carlton, a key aide to Gov. Haley Barbour during the tort overhaul effort, said the afternoon is an opportunity to look back at a job well done. “Hundreds of people will attend and not only remember where we were 10 years ago but thankful for where we are now,” she said.
The “Tort Reform: After Ten Years” seminar runs from 2 p.m. to 5 p.m. and will feature a who’s who of Mississippi’s past and present political establishment, including former Gov. Barbour, his successor Gov. Phil Bryant, Lt. Gov. Tate Reeves and House Speaker Philip Gunn.
Barbour, who rode to the governorship in 2003 on a promise of fixing the state’s budget and reforming its civil justice system, will review the intensely fractious effort to pass the bill. Barbour is of-counsel to Ridgeland law firm Butler Snow, one of the sponsors of the event.
He will be followed by a pair of panel discussions. On one, state, professional and industry leaders will detail what they believe are benefits of the 2004 overhaul. That redo included a firming up of a $500,000 medical malpractice cap on non-economic damages legislators adopted in 2002 and adoption of a general damages cap of $1 million on non-economic damages, which essentially are pain and suffering and punitive damage awards.
Though 38 states have enacted the caps, their constitutional firmness has come increasingly into question, having been struck down by supreme courts in Alabama, Illinois and — in March — Florida. A ruling on the constitutionality of Mississippi’s damage caps could come at some point from the state Supreme Court. A federal appeals court four years ago certified an as yet-to-be-addressed question to the state court on the constitutionality of the Mississippi damage caps.
With Wednesday seminar’s second panel, legislators, business leaders and medical professionals will address areas in which the civil justice changes can be strengthened or expanded. House Speaker Pro-tem Greg Snowden, a 16-year House member and attorney, will lead the discussion.
In a press statement issued for the event, organizers warned that the civil justice changes are in jeopardy, though they did not offer specifics.
“The public, as well as our own leaders and members, must not become complacent about lawsuit abuse,” organizers said in a press statement. “The threats against tort reform are real. We must remain active and vigilant.”
Rep. Snowden, in an interview Tuesday, said the principal threat to the liability restrictions rests with the judiciary, not the political system. He cited the Florida’s Supreme Court’s tossing out of that state’s wrongful death cap.
In its ruling, the Florida court held that the caps violated the Equal Protection Clause of the state constitution under the “rational basis test,” an interpretation Snowden says portrays the Florida Legislature as having no rational basis for enacting the cap in the first place.
Florida’s high court signaled it would treat reviews of other personal injury caps in like fashion. The statutory cap “has the effect of saving a modest amount for many by imposing devastating costs on a few — those who are most grievously injured, those who sustain the greatest damage and loss, and multiple claimants for whom judicially determined noneconomic damages are subject to division and reduction simply based upon the existence of the cap,” the court’s plurality ruling stated.
Snowden called the Florida court’s interpretation of the “rationality test” a contorting of the legislative rationality standard. It nonetheless should alarm proponents of the personal injury and wrongful death caps, he said.
“There is a nationwide attack on tort reform,” the Republican legislator said.
By contrast, opponents of Mississippi’s judicial overhaul say they fear a new round of restrictions on civil suits could be ahead. However, Rep. Jeffrey Smith, a Tupelo lawyer and key player in the 2004 revamp, said Monday he is unaware of any move afoot to consider new measures.
Smith, a member of the Legislature’s Constitutional Committee, said no one has approached the committee about an amendment to cement the damage caps into the constitution. Even if an amendment push did occur, it would have no chance of getting the required two-thirds approval of the House, according to Snowden.
Jackson personal injury lawyer and political blogger Philip Thomas said he will be surprised if a bid to expand tort reform does not occur in the near future.
“Some leaders in the Republican Party have spoken out for more tort reform,” he said in email. ”For some tort reform advocates it is not about fairness. It is about killing the civil justice system. Those people will not stop until it’s dead.”
Snowden said he does not know of any pressing tort changes on the horizon, though he did acknowledge the idea of a “loser-pay” statute “has come up a few times.”
Under such a rule, the party that loses in a personal injury action must cover the costs of the other side.
While Snowden said he would have concerns about such a law limiting access to the courts, he noted it is “a matter for discussion” and “I wouldn’t foreclose it.”
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