Opinions mixed three years after tort reform

The issue, legislators said, was that malpractice lawsuits were so common that physicians were considering moving to other states with more favorable laws.

Now, three years later, Gov. Matt Blunt is touting the success of tort reform in the state, but some members of the legal field disagree with his assessment.

Decreased litigation

Blunt, who signed the 2005 legislation, reports a 61 percent decrease in the number of claims against Missouri doctors, including drops of more than 70 percent in claims against general surgeons, emergency room doctors and obstetrician-gynecologists.

“The significant and comprehensive reforms we enacted have leveled the playing field in Missouri courtrooms so that doctors and small business owners can go about creating jobs and opportunity without the paralyzing worry about the effects of a frivolous lawsuit or runaway personal injury award,” Blunt said in a news release. Blunt’s office declined further comment on the issue.

The release also notes that the U.S. Chamber of Commerce has increased Missouri’s ranking in terms of best legal climate from 41st to 34th.

Randy Cowherd, defense attorney and partner with Haden, Cowherd and Bullock LLC, thinks doctors have benefited from the legislation.

“(The reform) probably had a significant impact on their evaluation process,” he said. “It seems logical that would have some effect on evaluating their risks.”

Cowherd isn’t convinced, however, that the reported drop in the number of cases is an accurate assessment of the legal climate.

He said a flood of cases immediately before the tort reform took effect likely skewed the numbers.

“If anyone had a case, whether or not they thought it was ready to file, they went ahead and filed it,” Cowherd said. “It was the anomaly of a bunch of cases that normally wouldn’t have been filed that were filed. We saw an absolute wave of litigation as people tried to beat that deadline.”

Neil Chanter, partner with Springfield-based personal injury firm Strong, Garner & Bauer PC, added that the drop in cases may not be a good thing, either.

“There is no evidence that there are fewer people being hurt,” Chanter said. “It’s a celebration of a half-truth. It only means there’s more people out there being hurt who can’t afford to do anything about it.”

Capped damages

One of the main features of the reform is the cap on noneconomic damages – costs not linked to a tangible injury such as medical bills or lost wages. The new law caps noneconomic damages at $350,000.

Supporters of the reform legislation say the cap makes the state more attractive for physicians.

“Those caps encourage physicians to come into the state to practice, and that in turn provides better access for Missouri patients, since there are more doctors in the state to see them,” said Jeff Howell, director of legal affairs for the Missouri State Medical Association. “Tort reform made Missouri a more attractive place for physicians to practice – when they graduate from (University of Missouri) Medical School, they don’t have to go to Kansas or California. They can stay in state.”

Howell pointed, as an example, to Texas, which instituted caps on noneconomic damages in 2003. According to the Texas Medical Board, the state issued 3,324 physician licenses in 2007, up 42 percent from 2004.

Still, the reform isn’t good news to everyone, including Springfield personal injury attorney David Ransin.

Ransin now focuses on cases involving motor-vehicle crashes, though he has participated in numerous medical negligence cases during his 25-year career.

“The No. 1 effect I’ve seen from tort reform is that it has taken away substantial constitutional rights of injured people,” he said. “It has heavily discriminated against children, disabled and elderly, and put a cap on the value of those people’s lives of $350,000.”

He said that because the only uncapped damages are those related to lost wages or medical costs, people who are injured and don’t earn a regular wage are limited to noneconomic damages of $350,000.

“If you’re a child, disabled, or elderly and retired, you have no wages. If you’re killed, you have no future medical bills,” Ransin said. “You have no tangible loss. So your life is worth $350,000. Period.”

Chanter added that the fact that the current law has no adjustment for inflation like the old law – the current cap of $350,000 matches the cap that was put in place in 1986 – only exacerbates the issue.

“The lack of an inflator, as time goes on, is only going to accentuate the young and the old’s inability to obtain recourse,” Chanter said.

Despite the dissent from some members of the legal community, the governor’s office stands behind its assertion that the legislation has been positive for the state.

“The bottom line is Missouri doctors, and the hospitals in which they work, now have more resources available to serve Missourians,” Blunt said in the release. “(Those are) resources that might otherwise have been exhausted on unnecessary insurance costs and extortionate payouts to personal injury lawyers.”