EDITORIAL: Tort Reform: Let’s Punt

Nov. 7, 2002 -- The special legislative session to address tort-reform issues should have ended weeks ago. It's been expensive, ineffectual and has only added to a confusing debate that has lumped corporate responsibility and medical malpractice into the same discussion. And as The Clarion-Ledger reported Sept. 1, the "special session" status may take tort reform a step closer to being unconstitutional, because the Mississippi constitution forbids special laws that protect individual entities if that law could be handled in a more general fashion. Abridging trial-by-jury rights is also a constitutional no-no.

While The Clarion-Ledger has followed this debate closely (albeit with a shaky pro-"reform" point of view), a recent editorial oversimplifies the issue by calling for the Legislature to "settle the issue of civil justice reform" simply because the session was called and money spent. There's so much punting going on in this debate that it's turning into a Super Bowl of touchbacks.

Yes, there are huge money interests on both sides of this issue, but don't just divide them into "business" (with the unwritten implication being much-needed jobs) and "trial lawyers." The fact is, the push for tort reform comes from large corporate interests and organizations that aren't planning any new plants in Mississippi—in the case of medical malpractice, those interests include insurance companies and pharmaceutical companies that have lost a great deal of money since the bubble burst on Wall Street. Meanwhile, the U.S. Chamber of Commerce has spent thousands in Mississippi running party-line pro-big-business ads supporting pro-big-business judges for the Supreme Court and other offices.

And there's another constituency that gets lost behind the "trial attorney" moniker—they're called people. In medical malpractice and product-liability cases, the attorneys are representing people who have been wronged.

Other states that have enacted non-economic caps have shown that the real losers are the people who can least afford to lose, perpetuating the notion that American justice is only for those who can afford it. Limiting non-economic damages is a regressive approach, because it assumes the bulk of a person's societal value is in their paycheck. Whether you're a stay-at-home parent or a minimum-wage earner, tort reform says your pain and suffering due to negligence is worth less than that of, say, a business executive, insurance adjuster or politician.

That's what we've already got in the medical malpractice bill, and its only saving grace is that the non-economic cap ($500,000) could have been lower (many pushed for $250,000). In product-liability cases, however, a non-economic cap for big business simply creates a line-item incentive for businesses by fixing the cost of ruining people's lives.

Non-economic caps have the additional consequence of making it more difficult to get an attorney. With the medical cap, suing for malpractice by an under- or unemployed Mississippian becomes a daunting decision for many lawyers and their clients, because the potential reward may not pay for the work involved in taking on cadres of corporate attorneys. Yes, there's greed in trial lawyering—it's a profit-motivated business just like insurance, manufacturing and for-profit hospitals. But don't doubt it—insurance companies and hospitals have won themselves a barrier to entry for working folks who need access to justice.

Was reform even necessary? On some level, yes—and the legislation deals with venue shopping and jury-pool composition issues. But it doesn't address frivolous lawsuits directly (with, for instance, filing fees or fines), instead opting for the more odious non-economic damage cap. The legislation also was not accompanied by tit-for-tat regulation of insurance companies, forcing them to lower their rates and cover more Mississippians. It should have been.

Having seen the medical malpractice bill, the Jackson Free Press recommends more prudence for the current "business protection" legislation. Yes, it was probably a mistake (born apparently of the Democrats' desire to control this debate) to spend over $1 million on a special session. But that doesn't mean we should compound the mistake by pushing through just any ol' civil tort-reform bill—particularly if we ultimately waste that million bucks on a bill that will simply be struck down as unconstitutional.

Frankly, we'd prefer to see the Legislature "burn a timeout" here and come back in 2003 when it's ready to view civil reform in the context of balancing business' need for predictability with the value of individual life and well-being. Wrap it all up in a constitutional package, toss in some special protections for small business and funding for regulation of problematic industries. Then we'd be onto something truly special.

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