Mississippi Litigation Review & Commentary : Mississippi Personal Injury Lawyer & Attorney : Phillip W. Thomas Law Firm : MS Litigation Review & Commentary

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On Tuesday the Mississippi Court of Appeals affirmed a $4.6 million Hinds County jury verdict in Miss. Baptist Health Systems v. Kelly. Here is the Court's opinion. This was the appeal of a 2009 trial that I wrote about in this 2009 post.

This was a pre-tort reform cap case. Ellen Kelly died as a result of exposure to latex during a surgery procedure at Baptist Hospital in Jackson. A form from an earlier surgery procedure indicated that Ellen was allergic to latex. The jury rendered a verdict against Baptist, but exonerated the doctor defendants.

The awarded damages were:

• $29,604.52– funeral and medical expenses
• $992,109– loss of household services
• $1,415,880– lost wages
• $2,253,065.48– pain and suffering

A big part of Baptist's appeal seemed to center on the fact that the jury exonerated the doctor-defendants, who also had a duty to take a proper history from Ellen. The Court rejected the argument finding that the doctors and nurses had a separate duty.

Baptist also complained because the trial court did not allow the jury to apportion fault to an anesthesiologist. I can't tell for sure, but Baptist may have been trying a version of the sneaky finger-pointing defense that I talked about in this post. The Court rejected this argument because there was no testimony suggesting that the anesthesiologist deviated from the standard of care.

Judge Ishee wrote the majority opinion. Judge Maxwell wrote a specially concurring opinion. Judge Carlton dissented based on her assessment that the plaintiff did not prove medical causation.

Joey Diaz, Christopher Williams and Dennis Sweet represented the plaintiff. Mike Wallace and a bunch of other lawyers from Wise Carter represented Baptist. Judge Winston Kidd was the trial judge.

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There was a defense verdict this week in the Pike County medical malpractice trial against a doctor that I mentioned in this post. As reported by Shannon Ragland of the Miss. Jury Verdict Reporter in the comments, the style of the case was White v. Sumrall.

I believe that it was a labor and delivery case involving a birth that occurred approximately 15 years ago. The Kitchens Law Firm in Crystal Springs represented the plaintiff. Bob Ramsey of Hattiesburg represented the defendant. Judge Mike Taylor presided in the case.

I'm sure that there will be more information on this verdict in a future issue of the Miss. Jury Verdict Reporter.  

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On August 23, 2011 the Circuit Court of Leflore County rendered a $500,000 bench trial verdict against Greenwood Leflore Hospital in a medical malpractice case. Here is the trial court's judgment and findings of fact and conclusions of law in Long v. Greenwood Leflore Hospital and Francois Lesage, M.D.

Facts:

Monica Long, age 10, became sick on Friday September 21, 2007. Monica's mother Stephanie took her to the emergency room at Greenwood Leflore Hospital on Sunday Sept. 23. Monica was in pain and had a fever of 102.

At the hospital Dr. Lesage diagnosed Monica as having an ear infection and prescribed antibiotics.

Later that night, Monica seemed worse and vomited. Her mother called the hospital twice and was told to give Monica antibiotics and bring her back in the morning. At 9:30 a.m. the next morning, Monica collapsed and was taken back to the emergency room. She stopped breathing and was transferred to UMC.  Monica died on Sept. 25 from bacterial meningitis.

Noel Harris of Greenville and Michael Cory and Ken Miller of Jackson represented the plaintiff. Gaye Nell Currie and Rex Shannon with Wise Carter in Jackson represented the hospital.

The Court's Decision:

The case was tried as a bench trial before Judge Ashley Hines because the hospital is subject to the Tort Claims Act. The trial court found that the hospital breached the standard of care in giving medical advice over the phone and not telling Monica's mother to bring her back to the hospital on Sunday night. The court found that if the hospital had instructed Stephanie to bring Monica back to the hospital, she would have been properly diagnosed and treated and would have survived.

The court awarded the maximum damages of $500,000.

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Two weeks ago the Mississippi Supreme Court reversed a 2009 Scott County defense verdict in a medical malpractice case and remanded the case for a new trial. Here is a link to the Court's opinion in Merchant v. Forest Family Practice Clinic and Dr. John Lee. Dr. Lee is the son of the Sheriff of Scott County.

The Court's opinion considered several issues raised by plaintiff on appeal. The Court rejected most of the issues, but reversed and remanded the case for a new trial due to juror misconduct.

Facts:

During the trial defense counsel asked the following question to plaintiff's expert witness:

as far as your medical legal business picking up, can you tell me if you've been retained as an expert in the case where [counsel for the Estate] is suing Dr. Howard Clark just up the road?

That's right, in a conservative venue with a huge home field advantage, defense counsel played the “these guys are suing another popular doctor” card. [Guys, you really don't need to push the envelope in places like Scott County, since you get jurors like the one you had in this case.] 

After the trial, a juror signed an affidavit that stated that another juror said during deliberations:

that he had been a patient of both Dr. Lee and Dr. Clark. That both were good doctors and that we the jury could not 'let those attorneys keep taking money from our doctors.' and that he continued to refer to [the other lawsuit] in an attempt to persuade his fellow jurors to vote in favor of Dr. Lee. (emphasis added).

Shane and Rebecca Langston of Jackson represented the plaintiff. Defense attorneys were Anastasia Jones, Mildred Morris, James Becker and Tim Sensing all of Watkins Eager in Jackson. Judge Marcus Gordon was the trial judge.

The Court's Opinion:

The Court quoted several voir dire questions where the juror at issue did not admit that he was a patient of the defendant or had knowledge of facts that were relevant to the issues in the case. The Court ruled that the juror's references in deliberations to Dr. Lee as a good doctor and the separate lawsuit against Dr. Clark, 'another good doctor' “reveals a decision guided by neither the evidence admitted nor the circuit court's instructions of law.”

The Court determined that this was juror misconduct that compromised the estate's right to a fair, impartial and competent jury. The Court reversed and remanded the case for a new trial.

Justice Randolph wrote the Court's opinion, which unanimously reversed on the issue of juror misconduct.

My Take:

I have a lot of respect for the defense lawyers in this case. I'm going to assume that they got a little carried away in cross-examination, which can happen. Luckily, the question helped expose an apparently dishonest juror.

I will have a long post on Wednesday about my take-away from this decision.

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The Clarion-Ledger reported last week on a $553,000 jury verdict in a Hinds County medical malpractice trial against Jackson neurosurgeon Dr. Adam Lewis. The article provided a good description of the plaintiff's allegations:

Joanne Hartwig's negligence lawsuit in Hinds County Circuit Court said Dr. Adam Lewis' surgery on Aug. 1, 2005, left a plate in her back in the wrong position and one of the screws to fuse the lumbar spine bones together floating, not attached to bone.

Hartwig said the problem was discovered after she sought a second opinion because her condition continued to worsen under Lewis' care.

On Nov. 28, 2005, Hartwig said she had to undergo another surgery via her abdomen for the removal of the hardware.

"Ms. Hartwig sustained painful, debilitating injuries of a permanent nature, as well as the pain and suffering associated with having to undergo multiple surgeries and procedures," her lawsuit has said.

The components of the jury's verdict were:

• $178,000– economic damages
• $375,000– non-economic damages.

The article states that Dr. Lewis will appeal.

Precious Martin of Jackson represented the plaintiff. Whit Johnson of Currie Johnson in Flowood represented Dr. Lewis. Judge Winston Kidd was the presiding judge.

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There are reports of a $1 million verdict last week in Hinds County Circuit Court in a trial before Judge Winston Kidd. The facts of the case were that an elderly woman on kidney dialysis died as a result of a contaminated catheter left in place by a nephrologist. The woman developed sepsis and died as a result.

According to my report, during closing argument the defense argued that even if they were negligent the damages were $0. The defense's argument on this point was that the decedent received income of $489 per month in social security benefits. After the subtraction of rent, food, medication and other expenses the decedent was left with no money at the end of the month. Therefore, the defense argued that the decedent's damages were $0.

Incidentally, if that argument is true then there are a lot of lawyers in Jackson living paycheck to paycheck whose lives aren't worth anything either.

Plaintiff's counsel was the cagey veteran trial lawyer Isaac Byrd of North (not to be confused with South or Mid) North Congress Street in Jackson. In response to the defense's damages argument, Byrd argued that it was insulting to the family that people pay $1 million for race horses and paintings, but the defendants thought this family's mother was worth nothing. If I am not mistaken, famed trial lawyer Moe Levine was using this argument at least 50 years ago. The defense's closing gave Byrd the opportunity to use the argument to maximum effect and he took advantage of it.

Defense counsel was Diane Pradat of the Wilkins Tipton firm in Jackson.

I will report more on this verdict if I obtain more information.  

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An Adams County circuit court jury returned a $511,000 plaintiff verdict on Thursday in Ford v. Fairbanks. The trial was a medical malpractice case that involved a knee replacement.

Here is the Complaint. The Plaintiff (Johnny Mack Ford) alleged that the Defendant Dr. Rusty Fairbanks negligently performed a left knee replacement. The plaintiff developed sepsis and had multiple revision procedures by other physicians to repair the damage caused by Dr. Fairbanks.

Here is the jury's verdict form. The jury awarded $300,000 in non-economic damages and $211,000 in economic damages.

David Dunbar of Dunbar Monroe in Ridgeland represented the plaintiff. Diane Pradat and Brad Overcash of Wilkins Tipton in Jackson represented the defendant. Judge Forrest Johnson was the trial judge. 

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A Hinds County Circuit Court jury returned a defense verdict on Monday in a medical malpractice case tried before Judge Winston Kidd.

Here is the Complaint in the case filed by James McClure against Dr. Anthony Petro, Dr. Clark Ethridge and Mississippi Baptist Medical Center. The Complaint alleges that Dr. Petro perforated plaintiff's bowel during a laparoscopic procedure and that defendants breached the standard of care in failing to diagnose and treat the perforated bowel.

Dr. Ethridge was quickly dismissed from the case via a summary judgment motion. I can't tell from the docket when Baptist was dismissed, but it appears that Baptist was not at the trial.

The trial lasted one week and one day. The jury's verdict was unanimous. Here is the jury's hand-written verdict. I hear that the jury thought that the plaintiff's case was very weak.

Salvador Bivalacqua of New Orleans represented the plaintiff. From the docket, it appears that Walter Johnson and Mildred Morris from Watkins & Eager represented the Dr. Petro. [correction: It was actually Jim Becker who tried the case for the defense with Walter Johnson. Becker is a legendary veteran of the Mississippi defense bar.  Mildred Morris was not involved in the trial].

If anyone has more info. on this verdict I would be happy to report it. This is an example of a stealth defense verdict in a medical malpractice trial. This happens a lot. I heard about the verdict only because my wife is friends with the spouse of one of the jurors.  

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I have a report of a $1.1 million jury verdict returned Wednesday in Hinds County Circuit Court in a case tried before Judge Winston Kidd.

The reported facts are that it was a wrongful death case. The decedent had stomach ulcer surgery and was released from the hospital. After discharge the ulcer hemorrhaged, causing the death. I assume that the plaintiff alleged that the surgery was not properly completed and the decedent should not have been released from the hospital.

Alton Peterson was the plaintiff's lawyer. Defense lawyers were Whit Johnson, Stephen Kruger and Marc Caraway. I do not yet know the identity of the parties.

I will post an update if I obtain more information.

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I've heard that in recent weeks there was a medical malpractice trial in Madison County Circuit Court with Judge Samac Richardson presiding. During the trial one of the jurors started having a seizure or some similar type of medical emergency.

At the time, Plaintiff's doctor expert was on the witness stand. The witness doctor froze. Meanwhile, the Defendant doctor rushed to the jury box to provide assistance to the sick juror.

Needless to say, Judge Richardson had to order a mistrial. I wonder who would have won after that episode?

I would love to get more information on this trial, so please contact me if you can verify this story or provide more details. I do not reveal the names of sources in posts if the source does not want me to.

Medical malpractice defense lawyers are more secretive than the CIA about their trials, most of which they win. What ever happened to self-promotion?

Update: John Christopher represented the plaintiff and Whit Johnson with Currie Johnson represented the defendant.

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On April 14, 2010 the Circuit Court of Forrest County, Judge Dale Harkey, rendered a verdict of $579,789 in the med-mal case of Jessie Lee Johnson v. Forrest General Hospital. Here is a copy of the Court’s findings of fact and conclusions of law.

The Plaintiff underwent a successful knee replacement at Forrest General in 1998 and was transfered to the rehabilitation unit in the hospital. Two weeks later, plaintiff’s knee was injured.

Plaintiff alleged that the injury occurred when an aide assisted her to the restroom. She stated that the aide did not put down the foot rest on plaintiff's wheel chair and plaintiff’s foot caught the floor, causing the dislocation of her knee. Multiple additional dislocations followed. Ultimately, a new knee was installed. But the knee became infected and her leg was amputated above the knee.

The aide disputed plaintiff’s testimony. She stated that no accident happened and that both foot rests were on the wheelchair when she transported plaintiff. In addition, the hospital argued through expert testimony that the injury could not have occurred as plaintiff described and that the knee installation was sub-standard, which caused the dislocation.

As an aside, defendants love to dump on other health-care providers in med-mal cases when the other providers weren’t sued (they are “empty chairs”). But when the plaintiffs sue everyone in sight, the providers circle the wagons and go with some variation of a causation defense. This is a big reason that plaintiff lawyers are so cynical towards doctors.

The court weighed the evidence and decided that the plaintiff was telling the truth. The Court did more than take the plaintiff’s word for it. The Court considered evidence of a late nurse’s note that cast suspicion on the hospital’s account of the injury and compared plaintiff’s account to objective evidence in the medical records.

The Court assessed damages of:

• $199,789.54 for medical expenses
• $380,000.00 pain and suffering from at least 7 dislocations and the amputation.

The Court did not enter a final judgment because of the $500,000 cap in Tort Claims Act cases. The Court requested briefs on the Act and the limits of applicable insurance coverage.

Jennifer Ingram Wilkinson of Hattiesburg and a New Orleans firm represented the plaintiff. Gene Parker of Hattiesburg [correction: Vicksburg] represented Forrest General.

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On Friday Judge Allen Pepper in the U.S.D.C. for the Northern District awarded a total of $1.25 million in Sims v. U.S., a Federal Tort Claims Act case involving the VA Medical Center in Memphis. Here are the Court's Findings of Fact and Conclusions of Law.

The plaintiff was left partially paralyzed as a result of medical negligence by the V.A. $425,000 of the damages were to the plaintiff’s wife for loss of consortium. The plaintiff’s damages were broken down as $250,000 for pain and suffering and $850,000 for loss of enjoyment of life.

Plaintiff’s counsel were Mark Lumpkin and Matthew Mestayer of Biloxi and Jeanne Steffin from California. Sam Wright and John Gough from the U.S. Attorneys office in Oxford defended the case.

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The Healthcare Finance News is reporting that: “Fewer medical malpractice payments were made on behalf of doctors in 2009 than any year on record, according to the National Practitioner Data Bank.” And: “This finding contradicts claims that medical malpractice litigation is to blame for rising healthcare costs and that changing the liability system to the detriment of patients will not curb costs.”

The article contains statistics to back up the claims:

The value of malpractice payments was also the lowest since 1999. Adjusted for inflation, payments were at their lowest since 1992, a Public Citizen analysis of the NPDB shows.

According to the analysis, healthcare spending rose 83 percent from 2000-09, while medical malpractice payments fell 8 percent (both figures are in unadjusted dollars.)

A total of 10,772 payments were made on behalf of doctors in 2009, totaling $3.49 billion. That figure equals 0.14 of 1 percent of the Centers for Medicare and Medicaid Services’ estimated $2.5 trillion in overall U.S. healthcare spending for 2009.

Last year was the fifth consecutive year that the number of payments has fallen and the sixth straight year in which the value of payments has fallen, according to the analysis. In contrast, U.S. healthcare costs have increased every year since 1965, the first year the data was recorded.

Meanwhile, most valid med-mal claims are never filed:

Studies have found that injuries and deaths caused by medical errors dwarf the number of actual medical malpractice payments. For example, the Institute of Medicine found in 1999 that 44,000 to 98,000 people die every year due to avoidable errors.

The comments to  the article are also worth reading. In one comment a person with 25 years experience in med-mal claims states that there is no relation between healthcare costs and medical malpractice lawsuits.

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On Wednesday the Clarion-Ledger reported a $500,000 verdict against University of Mississippi Medical Center (“UMC”) in a Hinds County Circuit Court bench trial. Judge Tommie Green presided in the case and rendered the verdict.   

The case resulted from the 2005 death of 28–year old Tamika Foster less than 48 hours after the emergency delivery of a baby. The case appeared to focus on UMC’s failure to consult a hematologist despite a low blood platelet count. The article explains:

An autopsy determined Foster died as a result of myocardial ischemia with arrhythmia, secondary to thrombotic thrombocytopenia purpura with a history of HELLP.

Thrombotic thrombocytopenia purpura, a much more deadly illness than HELLP, was never diagnosed prior to Foster's death, Green said

Medical experts have defined TTP as a rare disorder where small blood clots form suddenly throughout the body, leading to a sharp decrease in the number of platelets in the blood stream.

The case was decided in a bench trial because the Mississippi Tort Claims Act requires bench trials in lawsuits against government entities, which includes UMC. The Act also places a hard-cap recovery limit of $500,000 for both economic and non-economic damages. Judge Green set the Plaintiff’s damages at $1.2 million and then reduced the verdict to $500,000 to comply with the Tort Claims Act.

David Dunbar of Jackson represented the Plaintiff. Walter Johnson of Watkins Eager in Jackson represented UMC.

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In November the American Association of Justice published this report identifying five myths about medical negligence (malpractice).

The identified myths are:

1. there are too many frivolous malpractice lawsuits;
2. malpractice claims drive up health care costs;
3. doctors are fleeing;
4. malpractice claims drive up doctors’ insurance premiums; and
5. tort reform lowers insurance rates.

Note: Yesterday's Natchez Democrat contained this article by attorney Sam Gwin that covered some of these issues in Mississippi.

The AAJ report then debunks each myth. Key points include:

• medical negligence causes 98,000 hospital deaths per year;
• there have been steady declines in the last decade in the number of malpractice lawsuits and the amounts of settlements and verdicts;
• the vast majority of filed medical negligence cases have merit;
• the amount spent to defend and compensate victims of medical negligence is .3% of health care costs;
• much of the “defensive medicine” is performed to generate more revenue for health care providers; and
• insurance premium levels are generally the same in states with damages caps as states without damages caps.

I would add another myth to this list: the myth that damages caps affect frivolous lawsuits. This might be the biggest myth of all. Proponents of damages caps argue that they are needed to address frivolous lawsuits, but it's cases with merit and severe damages that caps impact.

The public does not understand this. The public believes that caps affect frivolous cases and are surprised when you explain that caps restrict the recovery of victims of catastrophic injuries to an amount that is less than full compensation.

I am not convinced that damages caps will be permanent. At some point, there could be public backlash similar to what has happened with consumer arbitration. I have no doubt that the public supports legitimate attacks on frivolous suits. I do not believe that an informed public would support damages caps. Both courts and legislatures have a tendency to gravitate to public opinion.

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Tuesday night it was reported on the MAJ list service that Jackson plaintiff attorney Joey Diaz obtained a $4.6 million verdict Tuesday in a medical malpractice case, with the trial proceeding to the punitive damages phase. The email that was forwarded to me contained no other details.  I will post more information if it becomes available.

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In a 6-2 vote the Mississippi Supreme Court reversed the Court of Appeals today and awarded summary judgment to the defendants in Estate of Northrop v. Hutto. This was a medical malpractice case where the Harrison County Circuit Court (Judge Lisa Dodson) granted summary judgment to Gulfport Memorial Hospital and other defendants on the grounds that the plaintiff's expert witness did not articulate the required standard of care. The Court of Appeals had reversed the trial court.

Reading between the lines, it appears that the plaintiff's expert was unsophisticated as an expert witness and did not understand what the phrase "standard of care" means. Since the expert did not understand the concept of standard of care, he was unable to articulate the standard. Justice Randolph's majority opinion noted that:  

The success of a plaintiff in establishing a case of medical malpractice rests heavily on the shoulders of the plaintiff’s selected medical expert. The expert must articulate an objective standard of care.

The opinion then heavily quoted the expert's deposition, including testimony like:

Q: So, obviously, Doctor, this would not indicate the standard of care in Marchof 1999, would it?

A: I don’t -- I’m not sure what you mean by describing the standard of care. None of [the documents brought to the deposition] deal with the standard of care. They are all case reports of infiltration, different problems with extravasation. I have not brought anything on the standard of care if that’s what you’re referring to.. . .

Q: . . . There is no textbook of anesthesia that says in writing the standard of care requires visual or palpation observation of the fluid actually going into the vein during an ongoing case; that is correct?

A: That is correct. 

Arguably this last question was a trick question, since medical textbooks typically do not articulate the legal "standard of care." A testifying expert must understand that the phrase "standard of care" means articulating what exactly a minimally competent physician would have done in providing reasonable care to a patient. Stated another way, the expert simply must identify what the defendant should have done and state that this is what the standard of care required.

This case is an example of why plaintiff's attorneys have to be very careful in cases requiring expert testimony. just having an expert who "makes a good witness" or looks good on paper is not enough. The expert must also understand what the plaintiff must prove in order to establish a case and be able to articulate opinions that satisfy the plaintiff's burden. That burden includes identifying what the standard of care required the defendant to do. It is also worth noting that although the defendant does not have the burden of proof, defense experts must also be able to articulate the standard in order to be allowed to testify at trial.

This was a fact specific case with little significance to other cases other than serving as a caution signal to lawyers to make sure that their expert witnesses are prepared to testify.

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On Thursday the Mississippi Supreme Court affirmed two jury verdicts.

The first was Young v. Guild, which was a medical malpractice case against a psychiatrist. The plaintiff alleged that the defendant was negligent in failing to prevent the suicide of one of his patients. In 2004 a jury in the Circuit Court of Yazoo County rendered a defense verdict at the end of a three day trial. Defense counsel was Whit Johnson and plaintiff's counsel was Ronald Kirk. The Court affirmed the judgment with Justice Chandler authoring the majority opinion joined by Justices Carlson, Randolph, Kitchens and Pierce. Justice Graves concurred in the result only and Justice Lamar dissented in an opinion joined by Justice Dickinson.

The appeal issues involved jury instructions, apportionment and the admission of evidence. The Court found that the plaintiff waived apportionment by not raising it in an interrogatory response, that the jury instructions were proper and that the trial court did not abuse its discretion in the evidentiary rulings. The dissent argued that the trial court's jury instructions did not properly set forth plaintiff's theory of the case. It's pretty rare for me to believe that jury instructions materially altered the outcome of a trial, so I am putting this case in the category of "move along folks, there's not much to see here." It looks like the defendant won fair and square. 

The second case was Horseshoe Casino v. Mitchell, which was a casino slip and fall case that resulted in a January 2008 jury verdict and judgment for the plaintiff in the amount of $56,000 in the Circuit Court of  Tunica County. Unaccustomed to losing, the casino appealed. To me, if you are going to appeal a $56,000 jury verdict you should be real sure that there was error, since the attorney's fees and expenses in connection with the appeal will be significant. There is a reason that appeals courts aren't deciding many appeals from county court.

The main issue on appeal was whether the trial court properly excluded evidence of a collateral source. The Court found that there is a narrow impeachment exception to the collateral source rule, but the trial court correctly did not apply the exception in this case. Justice Randolph wrote the Court's majority opinion. Justice Dickinson wrote a concurring opinion. Justice Kitchens wrote a dissent joined by Justice Waller that argued that there should be no exceptions to the collateral source rule. The main take away from this case is that unlike on the casino floor, the casino can actually lose at the courthouse.

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 A Canadian Medical Association article compiles statistics from several studies regarding medical malpractice and the compensation of its victims. Studies show the following:

In 2004, Healthgrades, an independent health care ratings company.... [examined] 37 million patient records from all 50 states, representing 45% of all US hospital admissions, found 195,000 hospital deaths from preventable medical errors annually between 2000 and 2002, (www.healthgrades.com).

In 1990, Harvard researchers examined more than 30,000 randomly selected records from New York hospitals. They concluded that 1% of patients were negligently injured, while only 4% of those who were injured, sued.

Harvard researchers [concluded that jury awards and settlments were fair] when they examined files from 1452 malpractice claims (NEJM 2006;354[19]:2024-33). Almost three-quarters had outcomes consistent with their merit. Only 10% of patients received payouts in the absence of error, while 16% received no payout despite the presence of error. "Portraits of a malpractice system that is stricken with frivolous litigation are overblown," the researchers concluded. The system performs "reasonably well" in dismissing such lawsuits and in compensating the injured.

The article also cited studies that show that jury awards are keeping up with the costs of medical care and are not out of line.

Attorneys who represent medical malpractice victims will not be surprised by these statistics. Experienced med-mal attorneys decline to accept the vast majority of cases that they review. Of the cases accepted, the negligence appears clear with substantial damages. But even with stringent screening, med-mal cases are difficult to win with juries looking for reasons to find for the physician or hospital.

There is also a "circle the wagons" mentality among physicians in Mississippi. This results in open hostility by physicians to plaintiffs and their attorneys, even from doctors who are not defendants in the case. In addition, Mississippi physicians almost never admit that another physician was negligent or that negligence caused the victim's injuries. This stacks the deck in favor of medical defendants in Mississippi.  

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In its March 7, 2009 print edition, the Clarion-Ledger editorializes about the 60% decline in premium costs for medical malpractice insurance for physicians since the passage of tort reform legislation. I was not able to find the editorial on-line in order to link it.

The Ledger points out that the plaintiff's bar wrongly predicted that malpractice premiums would not decline following tort reform. While this is a true statement, the Ledger is wrong to give all the credit to legislative tort reform. I believe that there were at least two other factors that had a significant impact on malpractice premiums.

First, a court-imposed change in multi-plaintiff joinder laws. In the late 1990's and early 2000's, physicians were being named as defendants in pharmaceutical and other mass tort cases filed in Mississippi. In many instances, the physicians were not really target  defendants and were sued in an effort to prevent out of state corporations from removing the cases from state court to federal court. But the physicians' insurance carriers had to hire lawyers to defend the cases. And since the nature of multi-party mass tort cases makes them more expensive to defend, medical insurers had to spend a ton of money on defense costs in cases that the doctors should not have even been in. 

At some point--and I do not remember the exact year--joinder laws were changed so that each plaintiff had to file and litigate his case individually. Once that happened, out-of-state mass tort lawyers largely left the state and the number of filed cases in which doctors were "venue" defendants decreased significantly.    

 The second factor not identified by the Ledger was the perception by some in the plaintiff's bar that the Mississippi Supreme Court would not affirm a plaintiff's verdict in a medical malpractice case. This had a chilling affect on the number of malpractice cases filed. It should be noted that in recent months the Supreme Court has affirmed at least two medical malpractice verdicts.

If the Ledger was correct that tort reform was the sole reason that doctors' insurance premiums declined, then wouldn't all liability premiums be lower? My personal experience with insurance premiums is that my malpractice premiums have gone up and my personal general liability coverage has not decreased.   

Hopefully, the sea-change in the litigation climate will settle down physicians and decrease the open hostility by some doctors towards the plaintiff's bar.