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

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The entire Mississippi Supreme Court heard oral arguments on Tuesday before a mostly full courtroom in the Double Quick v. Lymas case. Here is the Clarion-Ledger's article on the hearing. The audience was not disappointed as the arguments were very interesting.  

Case Background

The case is a premises liability case out of Humphrey County involving the shooting of a patron by a third-person in the parking lot of a convenience store in Belzoni. There was a large jury verdict that the trial court reduced due to the legislative cap on non-economic damages. Both sides appealed. The defendant appealed on liability and the plaintiff challenged the constitutionality of the caps.

The Court Focused on Liability Issues

The justices appeared most interested in the liability arguments. Defense counsel John Henegan argued for thirty minutes and argued that the verdict should be reversed and rendered based on lack of foreseeability and proximate cause. Plaintiff counsel Joe Tatum then argued for thirty plus minutes and did not get to the cap issue until his time had technically expired. Henegan then argued caps for close to thirty minutes on rebuttal. It looked liked the lawyers were more eager to get into the caps than the justices.

It appeared that five or more justices were skeptical that the plaintiff established that the shooting was foreseeable or that any negligence by Double Quick proximately caused the shooting. For this reason, the case could be reversed and rendered without ever reaching the cap issue.

Justices Were Skeptical of Legislative Caps Arguments

On the issue of the caps, Justice Pierce pointed out that the plaintiff did not raise on appeal the argument that the caps violate the equal protection clause. It appeared that Justice Pierce thought that this was the best argument challenging the caps. Several justices appeared skeptical of the constitutionality of the caps in their questioning of counsel.

Henegan argued that not only are the caps constitutional, but that the legislature can eliminate the right to recover “these types of damages” entirely. I thought he lost the justices with that one. The justices quickly realized that if the legislature can abolish some types of damages, then it can abolish the right to recover all damages. And it did not look like they were buying it.

Henegan was steadfast on this argument, citing the workers' comp system and the fact that the legislature abolished hedonic damages as a separate category of damages. But it's my understanding that hedonic damages are recoverable, they are just within the other non-economic damages. In addition, Justice Pierce pointed out that the workers' comp system is different, since employees do not have to prove negligence in return for the limits on recovery.

In any event, the right to sue for damages in civil court is older than this country. If the right were abolished, people would revert to taking the law into their own hands. Violence and chaos would be common. The best thing about our civil justice system is that it provides an orderly mechanism for resolving disputes. Although the system is imperfect, it beats the hell out of the alternative.

Henegan argued that the right to recover can be eliminated by the state legislature. I think he is dead wrong.

One last point on this issue. I find it difficult to believe that companies that make money from selling liability insurance advocate a system where there can be no tort liability. Liability insurance carriers would be out of business. So while insurance companies like caps that limit exposure, they do not want to eliminate exposure. It would eliminate their business.   

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Run-of-the-Mill Justice is the title of an article by Stanford Law professor Nora Freeman Engstrom published in a recent issue of the Georgetown Journal of Legal Ethics. Here is the article. The Article claims to represent the first ever careful study of settlement mill law firms. The article defines “settlement mills” as:

 “high-volume personal injury law practices that aggressively advertise and mass produce the resolution of claims, typically with little client interaction and without initiating lawsuits, much less taking claims to trial.”

The basis for the article included documentary evidence and fifty interviews with forty-nine current or former settlement mill attorneys or employees. The article is a must read for anyone in private practice or interested in the practice of law.

Some of the points that I found most interesting were:

• conventional plaintiff’s firms expand significant resources screening cases and almost universally decline more cases than they accept
• settlement mills usually sign a case if there is insurance involved
• clients served by settlement mills are comparatively uneducated and underprivileged and disproportionately belong to historically disadvantaged ethnic and racial minority groups
• for most lawyers, a good reputation is the cornerstone of financial success
• contingency fees have an advantage over other legal payment schemes because they (imperfectly) align the client and attorney’s financial interests
• settlement mills settle cases with only a few hours of employee time and almost no attorney time
• the “grim outlook” for plaintiffs at trial counsels in favor of settlement of cases
• when adjusted for inflation, the median jury trial tort award decreased 56.3% between 1992 and 2001 [WOW!]
•  90.5% of Texas personal injury lawyers agreed that juries were awarding less in cases with comparable injuries
• settlement mills rarely file lawsuits and almost never engage in formal discovery
• settlement mill negotiators and insurance adjusters come to a common understanding of case values
• settlement mills are terrible for individuals with a meritorious case with large damages
• insurance companies like settlement mills because they settle big cases at a discount and settle other cases fast.

Atlanta lawyer and blogger Ken Shigley compared settlement mills to kudzu:

Such law firms are able to operate in this manner only because federal courts bar tough regulation of legal advertising, and their operations operate "under the radar" because they almost never file their cases in courts. They are the kudzu of the legal system, operating in a manner generally contrary to the interest of their clients and the public, and just as hard as kudzu to limit.

The statistics regarding the decrease in jury trial awards is amazing. I suspect that the trend has continued since 2001. The suspicion and disdain that many jurors have for plaintiffs seems to be growing in our tort reform culture bought and paid for by the U.S. Chamber.

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The Supreme Courts of Illinois and Georgia recently ruled that tort reform statutes placing a cap on non-economic damages in medical malpractice cases are unconstitutional. Will Bardwell has been following the litigation. Here are his posts on the decisions in Georgia and Illinois. Bardwell links to the Georgia opinion. Here is the Illinois opinion.

The opinions reached their results for different reasons. The Illinois court ruled that the cap violates the separation of powers clause of the Illinois Constitution. Interestingly, the Mississippi Supreme Court recently cited the separation of powers clause in striking Governor Barbour’s attempted reduction of the judicial branch appropriations.

The Georgia court ruled that the cap violates the state’s constitutional right to trial by jury. I thought the Georgia opinion was the better read on the whole, but this quote from the Illinois opinion is pretty funny:

That ‘everybody is doing it’ [capping damages] is hardly a litmus test for the constitutionality of the statute. 

I have no idea what the Mississippi Supreme Court will do when it has to decide the issue of the constitutionality of Mississippi’s caps. My gut feeling is that the Court will strike the caps, but I’m not sure what the basis for that feeling is and it could be wishful thinking. 

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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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Today Ya’ll Politics linked to a Washington Examiner Op-ed story that attempted to link Mississippi’s judicial bribery scandal to the current health care debate. I have seen some dumb things written about the legal system. This may be the dumbest.

Try to make sense out of this quote:

There’s no reason why this situation should persist, except that the nation’s top trial lawyers continue to grease the skids in Washington, D.C., and state capitals, piling up money for Democratic politicians who in turn hinder the cause of lawsuit reform. A recent Examiner analysis of contributions from employees of the top 15 plaintiffs’ firms found that less than 2 percent of nearly $1.3 million they donated went to Republicans.

That’s why President Barack Obama and Democrats seek to prevent state-level legal reforms in their health care bill. It’s not just that the bill lacks tort reform provisions, it punishes states that adopt them by withholding federal money.

But those legal reforms are necessary. Otherwise, the natural conclusion is the world portrayed in “Kings of Tort,” the recent book by Alan Lange and former federal prosecutor Tom Dawson. The book describes how former tort baron and current federal prisoner Dickie Scruggs sued his way into a fortune and then began purchasing an entire state’s judiciary. Years before he was caught bribing two Mississippi judges, Scruggs had described as “magic jurisdictions” those places where verdict money was used to stack benches and juries.

This is another straw man argument for tort reform. But this one is worse than the norm.

Scruggs purchased “an entire state’s judiciary”? Really? Because I’ve read Kings of Tort, and that is not what the book says. According to the book, Scruggs tried to bribe two judges, one of who reported it to the feds and the other of whom is now in jail.

And frankly, the statement is a slap in the face of Mississippi’s "entire judiciary". Is the author really claiming that Scruggs purchased all the judges in Mississippi? Is he really that stupid?   

I do not believe that we have a corrupt judiciary in Mississippi. But even if we did, the solution to corruption in an elected judiciary would be:

1. prosecute corrupt judges; and/ or
2. have an appointed judiciary.

Not caps.

Politics in the U.S. is rife with corruption. My guess is that there is less corruption among elected judges than other elected politicians. But regardless, lawsuit caps do not even address judicial corruption, much less solve it.

Why would someone make this argument? According to some, the author of the article (David Freddoso) is a shill of the political right (aka Big Business). Here is an excerpt from a review of Freddoso’s book that attacked President Obama:

David Freddoso's new book, The Case Against Barack Obama: The Unlikely Rise and Unexamined Agenda of the Media's Favorite Candidate is a badly written hatchet job, full of errors and distortions and smears. The author, who works for the right-wing National Review and published his book with Regnery (which printed Unfit for Command, one of the Swiftboating attacks on John Kerry in 2004), simply fails to prove his key assertions, preferring to rely upon a bunch of false attacks, McCarthyist-style denunciations of Obama's associations, and extreme conservative attacks on abortion rights, all of it padded with lengthy digressions on topics unrelated to Obama and his record.

Freddoso's embarrassing excuse for a critique has received virtually no critical attention, thanks to the right-wing press promoting it and the compliant mainstream outlets. A fawning story in the Politico called Freddoso's book "serious" and "a fact-based critique." According to the Politico, it occupies "a small island in the often-shrill sea of criticism of Obama." In reality, Freddoso's book is one more example of that polluted sea of criticism, filled with numerous factual errors, unproven innuendo, guilt by association attacks, and lunatic conspiracy theories that would be laughable if not for the seriousness of these false accusations.

Freddoso’s latest straw man hatchet job that implicates the Mississippi judiciary is both out of line and dumb.

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In an article for the Atlantic, legal analyst Andrew Cohen calls tort reform anti-democratic, but ingeniously marketed by corporate America:

Supporters of tort reform, invariably corporatists and others who believe in this self-defeating supply-side notion of justice, have scammed or otherwise brainwashed millions of Americans into thinking that tort reform will save them from despicable "trial lawyers," a convenient target group in this ever-litigious world. But no 'trial attorney" ever went into the jury room and voted for a large verdict against a greedy corporation which purposely hid health risks from its customers. No "trial judge" ever put a gun to a foreperson's head and made that man or woman sign off on a big reward against an environmental polluter or tobacco company or maker of unsafe toys.  

Personal experience in talking with clients and prospective jurors in voir dire during trials makes me conclude that average citizens do not understand tort reform. Most people think that tort reform addresses frivolous lawsuits instead of lawsuits involving the worst possible conduct. People do not understand that:

It takes control over damage awards in many civil cases away from local judges and juries and gives them to state politicians, who often are just shills for their corporate campaign contributors and lobbyists. It protects corporations from punishment for their worst excesses. It diminishes good incentives for corporate carefulness and increases bad incentives for shoddy work and services.

In order to sell tort reform, corporate America applies a bait and switch commonly referred to as a “straw man” argument. Barry and Soccio define the straw man attack as follows in their book Practical Logic 104:

The straw man fallacy is an argument that so alters a position that the result is easier to attack than the original and yet claims that it has provided grounds for attacking the original.

Corporate America claims that tort reform is the solution for frivolous lawsuits. But "frivolous lawsuits" is their straw man. They use frivolous lawsuits as their straw man because what they really desire is their offered solution: damages caps that reduce their liability for wrongdoing.   

Why do tort reform’s proponents push a solution that does not apply to the “problem” of frivolous lawsuits? Because frivolous lawsuits is not really the problem for corporate America. They can squash a frivolous lawsuit like a bug. What they can’t squash without damages caps is their liability exposure for terrible conduct such as covering up a product’s dangerous defect. And they know that the public wouldn’t go along with it if the public knew the truth.

The reason that people do not understand tort reform is because proponents of tort reform do not want them to. Tort reform proponents invariably talk about merit-less lawsuits when selling tort reform.

So they pull a bait and switch using a frivolous lawsuits straw man. They talk about despicable trial lawyers and frivolous lawsuits and push through damages caps that don’t even address their stated “problem.”  It’s a ploy—but it’s a smart one to get what they want.

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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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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. 

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Matt Eichelberger at Ipse Blogit has this outstanding post taking issue with Governor Barbour's latest tort reform scare tactic that I wrote about here.  Eichelberger notes:

Now, having practiced in the civil arena before, I can assure you that pre-suit notice, in reality, does nothing more to help settle a case than the filing of a complaint does. It's just a trap to ensnare unwary citizens and keep them from getting justice when they are harmed by a state actor. Period.

and:

Here are the number of physicians in Mississippi by year from 1998 through 2007:

1998 - 5,133
1999 - 5,232
2000 - 5,399
2001 - 5,544
2002 - 5,680
2003 - 5,820
***TORT REFORM ENACTED***
2004 - 5,872
2005 - 5,872
2006 - 5,890
2007 - 5,961

Anyone notice anything odd? For all the hue and cry from tort reform proponents about doctors leaving Mississippi and the health care crisis that would ensue, we had growth in the number of physicians in Mississippi during the 6 years leading up to tort reform, and in fact, we have had less growth since tort reform.

Meanwhile, yesterday the Clarion-Ledger proved what a joke it is as a newspaper with this editorial, which takes Barbour's bait hook, line and sinker, without being able to explain why Barbour is right. Having a good outdoors writer, cartoonist and sports writer does not make a good newspaper.

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The Clarion-Ledger reported in this story on Monday about Governor Barbour's attempt to politically scare the Mississippi Supreme Court into reversing a near-unanimous opinion. Here is the Governor's amicus brief filed with the Mississippi Supreme Court. Here is the Supreme Court's opinion in Price v. Clark. As an initial comment, the Court's decision in Price that filing a lawsuit tolls the running of the statute of limitations was clearly correct and is consistent with the laws of civil procedure in states throughout the nation. The Court's decision in Price has nothing to do with the merits of the case. The defendants can still win on the merits through a summary judgment motion or as the result of a trial.

The shocking aspect of the Governor's brief is the fact that the Governor admits that the real purpose of the pre-suit notice requirement is to impose a penalty on plaintiffs who do not successfully navigate the pre-suit notice mine field:

The Legislature cannot have intended to establish a pre-suit notice requirement but virtually no penalty for non-compliance.

This is a bombshell. The Governor of Mississippi is stating that the state's tort reform laws contain a designed trap to eliminate cases on behalf of unsophisticated plaintiffs who do not properly jump through a set of hoops before filing suit. That was not supposed to be a reason for the notice requirements. Previously, the only reason given to justify the pre-suit notice requirements was that it would give a defendant a chance to investigate a case and settle it before incurring the expense of defending the lawsuit. This reason was already suspect, since defendants never actually try to settle a case after receiving notice, but before suit is filed. Representative Ed Blackmon correctly observed in  the Ledger's article:

The current law requires people who are injured to provide parties certain information with the hopes of settlement before litigation is filed, he said. "I don't know of a single case settled during that time. It's once in a blue moon."

What's happening instead, he said, is Mississippi is reverting to "the dark days when it was a crap shoot whether parties could even get in the courthouse."

What really happens is medical defendants wait to see if the plaintiff navigates the pre-suit notice mine field. In many instances, the defense starts the case by filing a ridiculous motion to dismiss asserting a twisted and absurd reason that the statutory notice provisions were not complied with. The pre-suit notice requirements are complicated and trip up competent lawyers. Regular people who try to assert a lawsuit on their on behalf don't have a prayer. Only after the initial motion to dismiss is resolved will a defendant even think about trying to settle the case--regardless of the merits of the case.  

Now we know as a result of Governor Barbour's brief that the real reason for pre-suit notice requirements in Mississippi is to obtain dismissal of cases with merit. Indeed, a case without merit is destined to be thrown out by the court anyway. This is sordid and wrong. Justice is supposed to be blind and everyone is supposed to have a fair shot in the court system. Govenor Barbour, on the other hand, wants the deck stacked in favor of insurance companies and big business.   

As I discussed in this post back in March, the Supreme Court's changes to multi-party joinder laws had a huge impact in reducing the number of cases against doctors where the doctors should not have been named as defendants. The other major factor with tort reform was the caps on non-economic damages. Pre-suit notice provisions were not a factor at all in reducing lawsuits. They have simply become a mechanism for cases with merit to be dismissed--a mechanism that Govenor Barbour wants to preserve.

If the Supreme Court revisits its decision in Price it should rule that the pre-suit notice requirements are unconstitutional and unenforceable. As support for its ruling the Court should point to the statement in Governor Barbour's brief.

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How would you feel if you were sentenced to two years in prison for speeding because murder has gotten out of hand? Chances are you wouldn't like it, since a petty offense like speeding doesn't have anything to do with serious crimes. But the U.S. Chamber of Commerce and tort reform supporters commit a similar bait-and-switch when pushing the tort reform agenda.

An April 28 Bloomberg article discusses the Chamber's renewed push for tort reform and cites shocking statistics about the unfairness of arbitration proceedings for employees and consumers. The Chamber's tort reform advertisements are pure propaganda. The Chamber cites lawsuits that sound frivolous. But the Chamber does not seek remedies that hold filers of frivolous lawsuits accountable. Instead, it seeks to put caps on recoveries in all cases, including for victims in legitimate cases with large damages. It's like arguing that you should be put in jail for speeding because there is a murder problem. The public does not understand this distinction, which is how the Chamber wants it.

Tort reform passed in Mississippi years ago. The public does not understand what legislation passed or what it means. I have yet to meet a client or potential client who understood that tort reform caps damages for meritorious cases. Everyone just assumes that it only affects frivolous lawsuits, since that's what the Chamber and other tort reformers talk about. Unfortunately, there has been no organization with the funding or marketing acumen to educate the public on the Chamber's propaganda. 

The Bloomberg article also cites a study that found what many lawyers have long suspected, that arbitrators favor business interests in the hopes of getting hired in future cases:

Alexander Colvin, a labor professor at Cornell University, published a study in January that examined employment dispute statistics from the American Arbitration Association. Employees won 31.6 percent of the time if the employer had no other case with AAA; 16.9 percent of the time if the employer had more than one case with AAA; and 12 percent of cases where an employer and a particular arbitrator were involved in cases more than once.

Colvin worries that “repeat player bias” is at work, with arbitrators favoring employers in hopes of being selected for future hearings

Of course, the Chamber argues for arbitration with claims that it is quicker, cheaper and just as fair as a court proceeding. In a previous post I criticized the costs of arbitration, but now there is solid evidence that arbitration is unfair in addition to being expensive. There is currently an arbitration fairness act pending in Congress that would ban pre-dispute arbitration agreements in some consumer agreements, such as nursing home admission agreements. Look for the Chamber's propaganda push to fight this legislation. You can bank on the fact that the Chamber's ads will be based on its frivolous lawsuit bait and switch tactics. 

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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.