National reform needed, local doctor says

Published 12:08 am Sunday, November 8, 2009

It’s been five years since the Mississippi State Legislature passed tort reform legislation, and Dr. Kenneth Stubbs remains just as grateful and just as vigilant now as he was then.

Though 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, Stubbs — the recipient of Natchezian of the Year award in 2008 in part for organizing local efforts drawing attention to tort reform — remains in a pre-tort reform state of mind.

“(Tort reform) has got to be a national mind-set,” said Stubbs, who practices internal medicine in Natchez. “Unless there is uniform tort reform, you’re still not going to see the full impact.”

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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.

Due to the fears of high-award lawsuits, some doctors did not prescribe drugs that had not been on the market for at least five years.

A Congressional Budget Office analysis conducted last month concludes tort reform lowers health care expenditures, and a national tort reform package would reduce national health care spending by about 0.5 percent, or $11 billion in 2009.

The analysis also concludes a national tort reform package would reduce mandatory spending for Medicare, Medicaid, the Children’s Health Insurance Program and the Federal Employees Health Benefits program by roughly $41 billion over the next 10 years. Ultimately, a national tort reform package would reduce federal budget deficits by roughly $54 billion over the next 10 years.

Stubbs said if the federal government were to pass a national tort reform package, it would further dispel notions of Mississippi being one of the most litigious sates in the union.

“When (federal legislators) talk about tort reform, they never say Mississippi. The national leaders never mention we’ve reformed our laws,” Stubbs said. “I don’t know why our federal politicians haven’t thrown our name in the hat as a state that has amended our laws.”

Stubbs said the pre-tort reform mind-set still lingers in the medical community, which makes it difficult to recruit doctors to the state.

“When you talk to residents and students at distant medical schools, they don’t want to come to Mississippi, and part of what they mention is tort reform,” Stubbs said.

“You tell (the students) about the tort reform legislation, but the preconceived notion is, ‘Mississippi is a bad tort reform state, and you’re still the poorest state in the union. I don’t want to go there.’”

The Effect

Rep. Sam Mims (R-McComb) counters Stubbs’ argument that Mississippi has received no credit for its tort reform legislation.

Mims, who voted in favor of tort reform in 2004, said the legislation has made a tremendous impact in the state.

“We have seen the credit and will continue to see the credit for years to come,” Mims said.

“It was the most comprehensive package ever passed in the legislature, and I think other states across the nation have looked to us,” Mims said.

“We’ve seen the effects of doctors leaving and hospitals closing because of frivolous lawsuits in Mississippi,” Mims added. “I talk to doctors and they often tell me their insurance rates continue to decline because of the legislation we passed, so it’s not only making a difference from an economic standpoint, it’s making a tremendous difference from a medical standpoint.”

Immediately after the legislature passed tort reform legislation, business began to trickle in, Mims said. Toyota chose Mississippi over about a dozen other states for a new $1.2 billion, 2,000-worker auto plant. The automaker insists it will pull up stakes if the legislation is overturned.

“We know for a fact companies were staying away from Mississippi because we were having a lawsuit abuse problem,” Mims said.

“Toyota would not have come to Mississippi if we had not passed tort reform. To me, it shows the rest of the country and the rest of the world we are open for business and we want business to come to Mississippi, especially southwest Mississippi.”

Like Stubbs, Mims is in favor of national tort reform, and believes the issue is not getting the attention it deserves in Washington, D.C.

“We need to see a comprehensive tort reform package in the federal government. It would be a tremendous savings to us,” Mims said. “I do wish that the officials in Washington would focus on passing tort reform like we did here in Mississippi.”

Stubbs said a national tort reform package would lower barriers between neighboring states. Stubbs’ medical liability insurance is through Medical Assurance Company of Mississippi, which assures about 70 percent of doctors in the state.

According to MACOM policy, a Mississippi physician cannot reside in Louisiana, a Mississippi physician cannot perform surgery in Louisiana and 25 percent of a Mississippi physician’s income cannot be generated from another state.

If national tort reform was enacted, Stubbs said, such stipulations would not exist.

“If a doctor in Baton Rouge has certain expertise to set up a clinic (in Natchez), he could,” Stubbs said. “It would be much easier to get specialty physicians to serve areas if there was uniform tort reform.”

Stubbs and Mims both agree national tort reform is an issue southwest Mississippians should get behind. The first step, they say, is putting in a call to the state’s federal legislators.

“Contact your federal congressmen and senators and say, ‘Hey, if there’s going to be any health reform legislation, it should include tort reform.’ That cry has been echoed by many people,” Stubbs said.

Not done yet

Since Mississippi passed tort reform legislation, Stubbs said his malpractice insurance premium has plummeted by 10 percent each year over the last four years.

Stubbs said his premium was $3,600 a month for he and his two partners before tort reform. Now, his premium is $2,580 a month.

“(The legislation) directly improved expenses for my practice, but again I think it will take years for a (new mind-set) to set in.”

Stubbs, who was sued 11 times before tort reform passed, said doctors still practice defensive medicine when doctors run tests a patient might not need to avoid litigation.

“You can’t go into the emergency room with chest pain, and not get a CT angiogram, an EKG, x-rays and chemistry labs, and I’d be surprised if you don’t leave with a $5,000 bill,” Stubbs said. “But it’s not on the doctor’s nickel, it’s on the patient’s nickel and that happens every day. It’s so ingrained in the thinking process.

“(A lawsuit) basically says you’re an evil and bad doctor and we’re going after you,” Stubbs said.

“Patients don’t understand the impact that has on you — the way it impacts applications for insurance, loans, hospital privileges. It’s great emotional distress, and it was all for nothing.”