Parties differ on impact of tort reform

JEFFERSON CITY, Mo. -- Missouri doctors who claim skyrocketing medical malpractice insurance rates are forcing many of them to abandon their practices have provided a sympathetic public face for the issue of tort reform since the matter became a top legislative priority last year.

But Democratic critics say a Republican proposal to overhaul the civil litigation system would have negligible impact on insurance rates and do little to help doctors while denying people a fair shake in court for legitimate claims.

During debate on a tort reform bill last week in the House of Representatives, Democrats derided the measure as a gift to corporate special interests that back the GOP.

"It addresses the concerns of the powerful at the expense of the powerless," said state Rep. John Burnett, D-Kansas City and member of the Missouri Association of Trial Attorneys, a powerful group strongly opposed to the bill.

However, the measure is far less sweeping than tort reform legislation Gov. Bob Holden vetoed last year.

State Rep. Richard Byrd, the bill's sponsor, said the current version focuses as much as possible on medical malpractice issues in an effort to provide the Democratic governor a measure he would be willing to sign into law.

"This is not some special interest grab, as we have been accused of on this bill," said Byrd, R-Kirkwood. "In fact, I have made a fair amount of enemies for telling them 'no.'"

The House, where Republicans are the majority, forwarded the bill to the Senate on a 92-56 vote. A companion measure intended to limit malpractice insurance rates enjoyed more bipartisan support, winning first-round approval on a 126-17 vote.

Limiting location

While portions of the tort reform bill would apply only to medical malpractice cases, several key provisions would affect all manner of civil lawsuits.

One of those relates to where cases may be filed.

Tort reform advocates contend plaintiff's attorneys have proven adept at moving cases to St. Louis city and Jackson County, even in matters where the connection to those jurisdictions is tenuous at best. Jurors in those urban venues have a reputation for granting higher damage awards than jurors elsewhere in the state.

Under the bill, tort actions would have to be filed in the county where the alleged injury occurred.

"Venue is the driving force behind the increase in costs," Byrd said. "Plaintiff's attorneys fight -- they fight for years in some cases -- to get a case tried in certain circuits."

Alvin Wolff Jr., a St. Louis-area lawyer who specializes in medical malpractice cases, said claims of venue abuse are overblown and that a legitimate connection to a particular jurisdiction has to be proven for a case to be heard there. Also, winning a selected venue doesn't guarantee a positive outcome for plaintiffs.

"Jurors aren't stupid," Wolff said. "The burden is on the plaintiff to prove their case."

Some black lawmakers complained an unspoken racial bias is behind efforts to reduce the number of cases heard by St. Louis and Kansas City jurors.

"It is personally offensive," said state Rep. Connie Johnson, D-St. Louis. "It is insulting to people in urban areas."

Liability threshold

Another widely applicable provision in the bill would limit "joint and several liability," the legal doctrine under which defendants found partially at fault are responsible for paying the full amount of a damage award if the party primarily at fault is financially insolvent.

At present, a defendant found 1 percent at fault can be on the hook for an entire damage award if the defendant 99 percent at fault can't pay up.

The bill would set a 51 percent fault threshold before a defendant could be required to cover damages assessed against another party. If no defendant with the ability to pay is at least 51 percent at fault, a plaintiff would be unable to collect the full monetary award if some parties are financially insolvent.

Wolff said that would reverse the centuries-old common law doctrine that places the needs of an injured party first.

The bill Holden vetoed would have completely eliminated joint and several liability -- a change business groups, such as the Missouri Chamber of Commerce and Industry, were seeking again this year.

While not as expansive as hoped, Michael Grote, the chamber's general counsel, said any reforms are welcome.

"Moving to a 51 percent fault threshold is a significant change for us," Grote said.

Cap on damages

One important component related solely medical practice cases would restore a hard cap on pain and suffering damages.

A 1986 law capped such damages at $350,000 but allowed for annual inflationary adjustments that have raised the cap to $565,000.

However, a recent Supreme Court decision found that multiple caps can apply to a single incident. The bill would essentially repeal that decision, action even the trial attorneys association supports. But it would also reset the cap at the 1986 level and eliminate adjustments for inflation, a move critics say is unfair to victims.

Economic damages for future and past medical costs or lost wages would remain unfettered by statutory limits.

The companion insurance bill would allow the Department of Insurance to establish a fair market rate for medical malpractice premiums. Premiums within 20 percent of that rate would be deemed reasonable. Companies charging rates in excess of that range could face fines of up to $5,000 for willful violations.

Although the insurance measure enjoys wide support, its enactment is tied to the success of the tort reform bill. If Holden signed the insurance bill but vetoed tort reform, the former wouldn't take effect.

State Rep. Terry Swinger, D-Caruthersville, supported the insurance bill but voted against tort reform. An optometrist, Swinger said the tort measure in its present form doesn't help doctors, though he hopes the Senate can refine the bill.

"I will vote for it when it comes back if it really addresses the problem," Swinger said.

The bills are HB 1304 (tort) and HB 1305 (insurance).

mpowers@semissourian.com

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