Malpractice Suits Plunge In Wake of Mississippi Tort Reforms

A new study of medical malpractice litigation in Mississippi suggests caps on pain and suffering awards and other reforms had a dramatic impact on lawsuits against doctors in that state.

The study in the current issue of Obstetrics & Gynecology is by Mark Behrens of Shook, Hardy & Bacon, the defense firm of choice for tobacco companies and manufacturers with serious toxic liability issues. No matter. Behren simply looks at the number of lawsuits filed against doctors insured by the Medical Assurance Co. of Mississippi, the state's largest med-mal insurer, and comes up with convincing evidence that once the legislature made it harder to sue and win big bucks, lawyers responded by filing fewer suits.

The charts make for interesting viewing. In the years before Mississippi began seriously discussing med-mal tort reform lawsuits against MACM-insured physicians rose at a steady rate of about 8.5% a year to around 250. They jumped to 355 in 2001 and then surged to 630 in 2002, after legislators passed a law capping non-economic damages at $500,000 for suits filed after Jan. 1, 2003. Who knew doctors could commit more malpractice simply because the legislature changed the rules? (The MACM said by the end of 2006 that it was "disposing of most of those claims with little or no expense," casting doubt on quality of that last-minute lawyering.)

The once-friendly legislators punished trial lawyers the following year by eliminating any increases in the cap on pain and suffering, outlawing forum shopping by forcing plaintiffs to sue in the county where they were allegedly injured, and other tweaks that made it harder to drag tangential players into lawsuits. Lawsuits fell to 132 in 2003, their lowest level since 1989, and since have averaged about 150 a year, compared with 207 a year in the decade before 2002.

The steady increase in lawsuits before tort reform exceeded the rise in MACM physician rolls, which was about 3.5% a year. The number of insured jumped 14% after reform passed to 2,500 and has since increased to 2,721. So, as Behrens points out, the reduction in lawsuits filed can't have anything to do with the number of physicians practicing. If tort reform doesn't explain the lower number of suits, why else are more doctors drawing fewer claims of malpractice? Medicine didn't suddenly get safer in Mississippi in 2003.

Behrens also talks about declining med-mal insurance rates, although as Tom Baker of the University of Pennsylvania has demonstrated convincingly, med-mal rates tend to rise and fall to their own rhythm. Still, the numbers are impressive. Premiums rose more than 10% each year between 2000 and 2004, with a 45% increase in 2003. Since 2006 they've fallen 5% to 20% a year.

The Mississippi experience offers a few important lessons. First, despite what some lawyers (and state Supreme Courts) say, the legislature does have the power to dictate the terms of civil litigation. The argument that medical malpractice litigation makes medicine safer is an idea in search of supporting evidence. And lawyers, like all business people, respond to economic incentives. The sudden spike in apparent malpractice followed by a major decrease says everything about economics and very little about how many people were actually injured by malpractice.