What is tort reform? It’s an issue that dominates politics in this year’s elections in many states, including Mississippi. It’s an issue that has kept Mississippi lawmakers on the job when they normally wouldn’t be. It’s an issue that few students know about and even fewer are concerned about. As with most political issues, it depends on who you ask. The American Tort Reform Association said tort reform will “bring greater fairness, predictability and efficiency to the civil justice system.”
They are joined by the American Tort Reform Foundation, which says reform will bring the overall fairness of the system. Jason Pollan, an alumnus of Mississippi State University and a member of the Mississippi Trial Lawyers’ Association said, “It’s an orchestrated effort between the business community and the insurance community to avoid having to take responsibility for the things they do wrong to the citizens of Mississippi.”
Tort reform, also called civil justice reform, is based on two concerns: the cost of all types of insurance and the right of people to sue others over the responsibility for some type of injury.
On tort reform, people can be divided into two camps. First is a majority of doctors, insurance companies and republican politicians. This group believes that sweeping changes are urgently needed. Second is a majority of attorneys, plaintiffs’ organizations and democratic politicians. This group believes the changes proposed by the other side would harm the American civil justice system.
Pollan said the proposed reforms are unconstitutional.
“It takes the individual who might have a legitimate claim against a company who wronged him and removes his right to go to the courts. The idea of limiting who can sit on a jury and what they can decide is just wrong. In the Bill of Rights, we have a protected right to a jury trial. It’s not just a criminal trial. It specifically says that any controversy over $20 is to be decided by a jury.”
Doctors and insurance companies cite concerns over rising insurance costs as the need for fast tort reform. Doctors’ offices are closing in many communities across Mississippi, and doctors say it’s because they can’t afford malpractice insurance. Insurance companies say the high prices they charge for malpractice insurance are a direct response to the costs of a growing number of lawsuits filed against the companies for medical claims.
Pollan said insurance companies are using that as an excuse. “Insurance company profits do not come from premiums paid in. It comes from investments. They take those premiums and invest them. If the stock market is up, they make more money and offer better rates. When the stock market is down, as it currently is, they have to make up that money from somewhere. It comes from the people they insure. That’s why the bills are getting high. We had a five- to seven- year period were rates were dropping and outrageous risks were being taken. Now that’s come back to haunt them, and they’re making the doctors pay.”
Another reason often cited for tort reform is a mass exodus of Mississippi doctors to practice medicine in other states. Pollan said, once again, the insurance and medical industries are not being completely honest.
“There’s all this talk of doctors leaving the state … and certain types of medical care not being available,” says Pollan. “In fact, we have had an increase of 500 doctors in the state. That’s according to the Mississippi state licensing board.”
Doctors, insurance companies, the ATRA and ATRF all argue that government caps should be placed on jury awards. They say the caps will help bring insurance premium costs down.
Mississippi lawmakers have spent most of their in the past weeks on that specific point of the debate. Legislators returned to Jackson Sept. 5 for a special session called by Governor Ronnie Musgrove to handle civil justice reform. Some 19 days and over $600 thousand in taxpayer dollars later, the state Senate and House of Representatives were still at odds over jury award caps.
Senators wanted to set a $250 thousand ceiling, while House members wanted a $1 million limit. Recognizing the stalemate, most legislators went home on Sept. 26. Key negotiators from both legislative chambers are still in Jackson trying to find common ground.
Pollan says that jury award caps aren’t the answer, either.
“The leading insurance organization … and it’s leaders say that if you think tort reform will fix insurance prices, then you’re mistaken. In fact, this summer, a cap was placed in Nevada. Within two weeks of that cap being put in place it was announced that insurance rates would be going up. If you really want insurance rates to go down, you need an insurance commissioner to make them prove their rates need to go up.”
Pollan said the only caps government should consider are caps on insurance rates.
“If insurance rates are the problem, capping jury awards seems like taking the long way of going around the block. It is a fly-by-night, pipe dream, fix-it that won’t do the job.”
The ATRA and ATRF claim that tort reform will increase the “efficiency of the court system by stopping lawsuit abuse.” Pollan says that is another misconception.
“Plaintiffs are only able to get into court because they have attorneys that are willing to work, for free, often for one to five years or longer. Basically, we work on the gamble that the case is good enough to win.”
Pollan said tort reform has basically prevented any case that doesn’t involve the “permanent maiming or killing of someone” from getting to trial.
Each side accuses the other of misinformation. According to Pollan, “most of the time, in jury trials, plaintiffs do not win. The numbers that get tossed around as far as jury verdicts are inflated.”
Pollan said that the massive verdict awards we hear about in the media are hardly the real story. “It’s the amount the jury found should be given. That money is not paid out under appeal. That money is not paid out if the appeal reverses the verdict or it is reduced. It is not paid out if the trial judge feels the amount is too much. You could have a $5 million jury verdict, but only $10 thousand is paid out. They’re not going to tell you that. They’re going to tell you it was a $5 million verdict, because that sounds better.”
Medical malpractice is not the only type of insurance involved in the tort reform issue. While it dominates the discussion here in Mississippi, Texas lawmakers are dealing with a similar situation involving homeowners’ insurance. Several states are having the same battle with automobile insurance. Even here in Mississippi, several compromise bills presented during the special legislative session were killed because they were limited only to medical issues.
Tort reform is an issue that is a long way from being resolved. The ATRA and ATRF said it is a “tax” on the American people.
“This issue is about responsibility,” Pollan said. “I don’t think it should be a free-for-all for companies to make a killing.