Roughly 250 doctors from across the state dressed in white physician’s coats and descended on the Missouri Capitol on March 5 in a demonstration of support for tort reform they say is needed to keep insurance costs from rising.
Lawmakers were quickly receptive to their voice unified as The Show-Me Tort Reform Coalition.
House Bill 1173, a tort reform bill sponsored by Rep. Eric Burlison, R-Springfield, passed in the House of Representatives on the same day. A similar measure, Senate Bill 589, sponsored by Rolla Sen. Dan Brown, was scheduled for perfection in the Senate on March 13.
However, the Missouri Association of Trial Attorneys and its president, a Springfield-area attorney, stand as staunch opponents to limiting jury awards.
The white coat rally was organized by a statewide group of some 31 health care organizations and business associations. The Show-Me Tort Reform Coalition is seeking to restore the state’s cap on damages awarded for injuries difficult to quantify – such as loss of enjoyment, pain and suffering, and loss of consortium in medical malpractice lawsuits. In 2012, the Missouri Supreme Court ruled caps on noneconomic damages were unconstitutional, removing the state’s tort reform law enacted in 2005. Previously, Missouri had capped noneconomic damages 1986–2002, when another Supreme Court ruling limited the effectiveness of the caps by permitting separate caps to separate defendants, according to the coalition.
Burlison’s proposal seeks to reinstate a cap of $350,000 per decision on noneconomic damages that was set nine years ago. A former business analyst for CoxHealth who now works for Cerner, Burlison said caps are needed in the current health care environment to keep costs down.
“We have a medical community that’s in crisis,” Burlison said, adding the federal health care reforms and the removal of caps serve as a one-two punch to health care providers.
Spokeswomen for both CoxHealth and Mercy Springfield Communities said their systems support tort reform.
In making his case for caps, Burlison employed an iceberg metaphor. In his scenario, direct health care costs to insurance companies and patients represent the portion of the iceberg visible above water. But the largest portion of the iceberg is the impact created by not having caps in place. When doctors take extra precautions to ensure they can’t be liable in a lawsuit, billable expenses add up.
“If you take more tests, you are likely to find something and that can lead to more procedures,” Burlison said.
Dr. James Wolfe, a retired physician who worked for 30 years in Springfield, most recently at Ferrell-Duncan Clinic, participated in the demonstration at the Capitol.
“We are concerned that the medical practice environment in Missouri is not going to be competitive compared to surrounding states, and we’ll begin to lose physicians,” Wolfe said.
According to the medical coalition, between 2002 and 2005, the number of companies writing insurance policies for Missouri doctors dropped to eight from 32, and by 2004, 1 in 10 OB-GYN doctors had quit practicing obstetrics because of insurance costs. Additionally during that time, the group reports 53 percent of neurosurgeons refused to accept Medicaid patients, 23 percent refused to accept Medicare patients, and 66 percent reduced the services provided.
When caps returned in 2005, the coalition says Missouri added about 1,000 physicians during the following seven years. Through 2012, the doctors’ groups report a $44 million decrease in written liability insurance premiums and a 47 percent drop in the number of claims filed.
Missouri Association of Trial Attorneys President Steve Garner said the state supreme court was right to find the caps unconstitutional.
“In both the United States and state constitutions, we have certain basic rights that should not be violated by the government or special interests. The right to a trial by jury in civil matters is one of those,” said Garner, a shareholder of Springfield law firm Strong-Garner-Bauer PC. “I think it is as significant a right as the right to bear arms and the right to worship. If we start interfering with this right, then where do we go next?”
The legislation serves as a challenge to the state Supreme Court’s July 2012 ruling that liability limits violate Missourians’ common-law rights to seek damages for medical malpractice claims.
“When you look at it, it is really hypocritical to say that our juries are good enough and competent enough to sentence people to life in prison or sentence people to death, but they are not good enough to assess damages in an injury case. The logic doesn’t make any sense,” Garner said. “It is just a special-interest protection bill. That’s all it is.”
While several states currently have caps in place, Garner said the supreme courts of neighboring states Arkansas, Oklahoma and Illinois have ruled those caps as unconstitutional.
With other technical professions, such as architects and engineers, malpractice insurance is common, and Garner said nobody is calling for caps on damages in those industries.
Garner pointed to a 2011 study by free-market think tank Cato Institute, which concluded government-imposed caps have a negative effect on health care by taking away incentives to follow safety protocols.
“There is a degradation of patient safety, and in states where they have governmentally suppressed insurance rates, it calls not the best doctors to those states but the worst,” Garner said.
According to the coalition, the year before caps were reintroduced in 2005, personal injury attorneys filed 1,512 claims against medical providers, compared to 741 the first year caps were enforced.
Wolfe said in the immediate years before the 2005 cap was adopted, his medical malpractice insurance was climbing by 50 percent a year.
“As a consequence of the tort reform, my rates dropped between 6 and 8 percent each year after,” Wolfe said.
Burlison said he expects Missouri Gov. Jay Nixon, an attorney by trade, to veto the tort measure, if the bill makes it to his desk. Last year, a similar bill sponsored by Burlison passed in the House but was stopped by a filibuster in the Senate.
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