As we go to press, it seems likely that Gov. Haley Barbour will call a special session this year to try and push through more "tort reform" measures after failing to reach a compromise with Democratic leadership in the House. The slogan leading up to Gov. Barbour's special session will be that the House leadership is not "allowing the majority to speak." But if general tort-reform liability caps pass, it will be the lobbyists and big industry who are being heard. The "majority" wants health care and jobs. Capping non-economic damages provides neither, and a special session will be a waste of taxpayer dollars on a partisan, ideological enterprise based on rhetoric and sketchy facts.
Instead, lawmakers should declare a moratorium on all "tort reform"—particularly more non-economic caps—until full and adequate research is done without deference to trial lawyers, doctors or big business. While Democrats—particularly Speaker Billy McCoy—have used some pretty heavy-handed procedural tactics to block reform measures this session, we feel their use has been justified for two reasons:
1. McCoy is countering GOP offensives—such as Lt. Gov. Amy Tuck's restructuring of the Senate Judiciary Committee on the opening day of the 2004 session—as well as recent moves to inappropriately inject tort reform measures into a banking bill.
2. There's no evidence that capping non-economic ("pain and suffering") damages is the right solution to medical malpractice costs or the perception of an unfriendly business climate in Mississippi, particularly when other common-sense reforms could have the same effect. Until an actual fair airing of all the facts is put before Mississippians by the media, McCoy should hold steady.
Mass media deserves a good dose of blame for the tort-reform fiasco we're faced with, thanks to glaring holes in, for instance, The Clarion-Ledger's coverage. "Mississippi still needs tort reform," was the dramatic flourish The Clarion-Ledger's editorial board used to end its April 16, 2004, editorial. This overly simplistic sound bite encapsulates what's wrong with The Clarion-Ledger's editorial stance regarding tort reform, which is centered around the irrational belief that $250,000 cap on non-economic damages is the cornerstone of a one-size-fits-all solution for both medical malpractice and corporate liability cases.
The test case most heralded is California, which instituted a $250,000 cap in the 1970s. It wasn't until Proposition 103, when insurance industry reforms were instituted in 1988, that insurance rates came under control, a fact often ignored both by The Clarion-Ledger's editorial board and other tort-reform boosters. Oddly, we can find no evidence of The Clarion-Ledger ever publishing or referencing a study commissioned by Gannett Inc., the corporate parent of The Clarion-Ledger, and USA Today, where the story "Hype Outracing Facts in Malpractice Debate" ran in March 2003, as well as in other Gannett papers.
That study found that a few vulnerable medical specialties were feeling a malpractice insurance crunch, but that most doctors were facing rising rates that were in line with the rapid rise in other health care costs. The study also found that only 2 percent of malpractice cases result in a winning verdict and that the dollar amount of malpractice settlements was up, but the rise was not primarily in non-economic damages. Insurance prices went up largely to make up for price wars in the 1990s and lost investment profits on the part of insurance companies.
While those findings remain underreported, other issues have been over-hyped by local media. A late 2003 report by the non-partisan congressional General Accounting Office (requested by GOP lawmakers) found that the "brain drain" of doctors leaving Mississippi was considerably less significant than reported by the mass media and tort-reform advocates. Doctor turnover in rural areas is always high, but Mississippi continues to see good doctors coming to the state, particularly in more urban areas such as Jackson. The GAO found that the per-capita number of doctors in Mississippi increased from 1997 to 2002, from 1.9 to 2.8 per thousand residents. It took media in states including Mississippi to task for not doing enough homework on the issue.
Everyone, including doctors, is feeling the pain of insurance premiums. Indeed, Gov. Ronnie Musgrove, a Democrat, called a special session in 2002 and forced the Legislature to examine exactly those points. The result was various medical malpractice tort reforms that include a non-economic damages cap of $500,000.
However, pro tort-reform interests—mentored by the U.S. Chamber of Commerce's Institute of Legal Reform, which spent $23 million lobbying in 2002 national races and is estimated to have spent millions of dollars alone on 2004 Mississippi Supreme Court judicial races—like to slip down an untenable "tort reform" slippery slope argument from medical malpractice to general business liability.
The heavily marketed leap in logic is that tort reform is a magic solution to both medical insurance and business woes for the state of Mississippi. In fact, the only thing that really ties medical malpractice to business liability "reforms" is the game of political football that's being played in the Capitol building. It remains to be seen if Gov. Barbour (the man Fortune magazine once called the most powerful lobbyist in Washington) will call for another Tort Bowl—a special session—and which side will have the better game plan. Unfortunately, there aren't any tickets to sell to offset the taxpayer costs of Barbour's little game.
Further steps need to be taken to stabilize malpractice and other medical insurance rates in Mississippi, perhaps based on lessons learned in California. Mississippi could use some additional reforms that would help juries and the judiciary make good decisions about medical malpractice and corporate liability suits. Proposals such as peer review and common-sense "joinder" rules are a good start for malpractice cases. "Civil justice reform" is indeed needed, but real reform goes beyond silver-bullet solutions that favor heavily funded lobbyists.
Ramming through non-economic damage caps for corporate liability cases is not a winner. Such caps allow companies to—at worst—risk the health and safety of consumers by placing a pre-determined limit on their financial punishment for negligence. Giving businesses a line-item cost associated with negligence is courting disaster. At the very least, it needs more study—and not funded by the U.S. Chamber.
Gov. Barbour should put aside further "tort reform" legislation and, instead, study medical malpractice insurance, health care reform and business liability issues in a non-partisan way. Money that would be spent for a special session should be spent, instead, on getting some expert advice from someone other than lobbyists.
Read "Hoodwinked," the JFP's September 2003 in-depth look at the tort-reform political game
This letter to the Sun-Herald makes very good points about the need for insurance reform. A Google search shows the writer is an attorney, but that sure doesn't mean he's not right that a more balanced approach to this problem is needed, as we talk about above:
Gov. Haley Barbour has missed a critical need in this state: insurance reform. Much debate and rhetoric has stalemated the governor's office and Legislature over the increasing costs of insurance for certain groups, particularly doctors and small businesses, vs. the rights of us all. Much of the blame has been cast toward juries made up of everyday people, who have listened to the witnesses actually testifying in court, and not the frenetic wrangling of politicians and lobbyists. The members of these "runaway juries" are our neighbors, church members, friends and friends of friends (i.e., Mississippians). Other blame is cast toward "trial lawyers," who are labeled as greedy, simply for representing their client to the best of their ability, just as insurance defense lawyers do for their clients.
No, the true blame must be cast toward the insurance companies that squeeze millions from our citizens each year, at the expense of meaningful coverage and reasonable premiums.
Read the whole letter
The Clarion-Ledger is trotting out a sad series of pro-tort reform propaganda these days. It stands in high contrast with the decent analysis they have done on education issues, and in sad similarity to the amount of thought they've put into the Voter ID issue (although, Stringfellow is starting to do more homework on it, as I link to today on Ayana's Talk about Voter ID).
Here's the latest tort-reform press release
An astute reader will note that The Clarion-Ledger (and tort-reform proponents) are now emphasizing the "perception" of Mississippi's out-of-control legal climate as the reason that big business is shying away from Mississippi. Beyond the sheer over-simplicity of such an argument that that is the only/main reason we have trouble attracting industry, Gannett Corp.'s local outlet and reform proponents are glossing over their role in *creating* that perception, regardless of reality. This has been a tidy deal: Do everything you can to create this hysteria, and then demand legislation based on the hysteria.
Barbour should just love The Clarion-Ledger for this one. It's done all his advance work for his (former) Big Industry clients. However, it's Mississippians who are getting screwed here. When is the C-L going to start doing some real journalism on this issue? Let me guess: After they help railroad through more damage caps. It's really breathtaking how the paper, wittingly or not, is allowing itself to be used as a political pawn on this issue.
Interesting. The Clarion-Ledger's business editor Scott Waller seems to be catching onto what's going on in this "tort reform" mess: a lot of politics. He nearly echoes what I wrote a few days ago just above:
He starts: When it comes to perceptions, Mississippi is fighting a losing battle.
There has been a lot of talk this week about the state's business climate. Is it good or bad?
Unfortunately, the current diatribe is such that reality doesn't matter.
At the Mississippi Economic Council's annual meeting Wednesday a great deal of time was spent discussing how civil litigation is out of control.
The most disturbing thing was that the majority of the 1,000 people at the gathering felt Mississippi isn't a good place to do business.
Or was it just a front? ...
Wow this is the closest the C-L has come to showing an understanding of the political depths of this issue. More:
Is the civil justice system here in need of repair? Sure.
Is it in the dire straits that are being shouted from the political bully pulpit? No.
The banter from both sides only hurts our state.
Good point on the "repair" and "dire straits" part, but I"m not a journalist should ever really complain about "banter" from anyone. Instead they should go find the truth and report it, thus filling in the gaps.
This is an important point to make about Barbour's Toyota letter:
Gov. Haley Barbour, a letter from Toyota in hand, came out swinging this week. The letter from Dennis C. Cuneo, senior vice president of Toyota, was dated April 20, 2004. Cuneo said a state's civil justice system is an issue the company explores when selecting a site.
Cuneo said the litigation climate here played a part in Toyota selecting Texas as a plant site. He also said Mississippi is hurt by negative publicity, such as a recent USA Today article that described the state's legal system as one of the "least friendly toward business."
It's interesting the letter to Barbour came more than a year after Cuneo publicly praised Mississippi. ...
Mississippi Development Authority officials at that time said the endorsement should help recruit potential employers to the state. Cuneo did express concerns over the state's civil justice system during the selection process, said others involved at the time. It just wasn't discussed in a public forum.
Toyota's decision came just prior to tort reform legislation going into effect here last year.
I am glad to hear someone at the C-L who sounds like he's starting to get it on tort reform, though. It's encouraging, although it hardly makes up for some of the completely deficient work they've done on this issue.
Read Waller's piece
The point, as I understand it, is that the Senate refuses refuses to support a reform bill that doesn't have damage caps. It doesn't sound to me like it's the House playing politics here. It sounds like the Senate/Barbour are about damages-or-nothing, so that they can turn around and blame the hang-up on the House. Interesting K Street-level trick to play on us dumb Mississippians.
His conclusion, though, misses some fine points of what's going on with the politickin' on this issue. The point, as I understand it, is that the Senate refuses refuses to support a reform bill that doesn't have damage caps. It doesn't sound to me like it's the House playing politics here. It sounds like the Senate/Barbour are about damages-or-nothing, so that they can turn around and blame the hang-up on the House. Interesting K Street-level trick to play on us dumb Mississippians.