When will Media and Doctors Give Credit to Mississippi Supreme Court's Decision in Janssen Pharaceutica v. Armond in Reducing Lawsuits Against Doctors?
Every few months there is a new newspaper article that credits legislative tort reform with the reduction in lawsuits filed against physicians in Mississippi. The latest example is this article that appeared in the Sunday Natchez-Democrat.
In discussing the alleged need for national tort reform in medical malpractice litigation the article makes familiar statements about what happened after Mississippi enacted legislative tort reform:
the number of medical malpractice claims has dropped by 91 percent from its peak, and the state’s largest medical liability insurer has dropped its premiums by 42 percent
The article suggests that this data is solely due to non-economic caps:
Under current law, individuals may pursue civil claims against physicians and other health care providers for alleged torts — breaches of duty that result in personal injury. Mississippi legislators in 2004 put a $500,000 cap on pain-and-suffering or non-economic damage awards in medical malpractice cases, ending the state’s reputation as the “judicial hell hole for jackpot jury verdicts” — a phrase coined by Gov. Haley Barbour.
Frivolous lawsuits hit their apex in Jefferson County, where a pharmacist was named in more than 1,000 lawsuits. A Jefferson County jury awarded $1 billion to the family of a woman who had taken the drug Pondimin, a weight loss remedy known as fen-phen that is now off the market.
Absent from this article and other similar articles is any mention of the Mississippi Supreme Court's 2004 opinion in Janssen Pharmaceutica v. Armond. The Court's decision in Jannsen had more to do with reducing lawsuits against doctors than did tort reform's non-economic damages caps.
Before Janssen there could be hundreds of plaintiffs with no connection joined in one lawsuit in a venue that was bad for defendants, such as Jefferson County. Janssen itself involved 56 plaintiffs suing a pharmaceutical company and 42 Mississippi physicians who prescribed Propulsid to the plaintiffs. The Court held that joinder of the claims into one case was improper and ordered claims of the individual plaintiffs severed and transferred to a proper venue.
After Janssen, mass tort plaintiff lawyers basically stopped filing tons of cases in Mississippi. This greatly reduced the number of lawsuits against doctors who were getting sued like crazy in pharmaceutical litigation cases where the doctors were not even real targets and were sued to keep the case out of federal court. A huge percentage of the 91% reduction in claims against doctors resulted from the impact of Jannsen. It had a much bigger impact on the reduction in filings against doctors than did legislative tort reform caps.
The second biggest impact on reducing the number of pharmaceutical cases against doctors was the tort reform provision that required plaintiffs to get an expert to sign off on the case before filing suit. This provision could impact the number of suits, since most of the claims against doctors in drug lititgation were not legitimate. So two things contributed to the reduction in the number of suits: (1) Janssen; and (2) the expert certification requirement.
Caps simply did not reduce the number of suits.
The fallacy with legislative caps on non-economic damages is that proponents claim that caps are needed to address frivilous (baseless) lawsuits. But the reality is that the caps come into play in the cases with merit and severe damages. Examples include cases where injuries are severe and permanent, such as brain damage or paralysis. A plaintiff lawyer is not going to choose not to file one of these cases because of the caps. But the victim will recover less money.
A damages cap does not affect a case where a plaintiff sues a doctor with a baseless claim in hopes of a quick settlement. That type of case will be thrown out by the judge on summary judgment before a trial. Insurance companies know this, but the general public does not. Apparently, the media does not understand this either, since it continues to ignore the Mississippi Supreme Court's contribution to the reduction on cases filed against doctors.
It's not surprising that politicians ignore Janssen and give all the credit to themselves. That's something polititicians do with both credit and blame. But it's disappointing that the media continues to drink the Kool-Aid.
"The second biggest impact on reducing the number of pharmaceutical cases against doctors was the tort reform provision that required plaintiffs to get an expert to sign off on the case before filing suit."
Really? From the defense side, our impression is that this requirement seems rather empty -- one never knows who the expert is, whether the expert's qualified, or what was said. Interesting if the requirement really is having an effect. I'm curious about the pros/cons of requiring the report to be attached to the complaint.
Anderson, one of the major cons of requiring expert reports be attached to the complaint (from the patient's side) is placing such a presuit requirement effectively requires a plaintiff prove his or her case without the benefit of any discovery.
While a plaintiff can get his or her medical records there are often times discrepencies in the records/testimony, illegible handwriting, and omissions from the records which can only be examined by taking the depositions of those involved.
The requirement necessarily has to be rather empty because, if a Daubert type report was required up front plaintiffs would be placed in a situation where they would have to prove their case without depositions, discovery, subpoenas etc, which from your perspective would be a Pro for the doctors/hospitals