Tort reform has doctors, lawyers on opposite sides

JEFFERSON CITY, Mo. -- If Gov. Bob Holden follows through on his promise to veto legislation that would make it more difficult for people to sue and collect large damage awards in personal injury and other civil cases, Dr. Scot Pringle, a Cape Girardeau obstetrician, has a suggestion.

"Perhaps they ought to get lawyers to deliver the babies," Pringle said.

Doctors throughout Missouri have lobbied heavily for the last two years for so-called tort reform. They claim frivolous lawsuits have forced medical malpractice insurance rates through the stratosphere, leaving many doctors in a position where they are no longer able to make a living.

Pringle, who has delivered approximately 8,000 babies during his 23 years practicing in Cape Girardeau, said malpractice insurance currently costs him $85,000 a year and looks to increase.

"A lot of us have been practicing long enough we are near retirement," Pringle said. "Frankly, I don't want to put up with this mess anymore."

However, the bill that the Missouri Legislature sent to the governor on Thursday goes beyond providing legal protection to doctors and contains many provisions that would ease the blow of litigation on all manner of defendants.

Holden, a Democrat who vetoed even more expansive tort legislation last year, said the Republican-led legislature still hasn't addressed the true issue of insurance reform.

"As I have said from the very beginning, I will veto this bill because it does not include insurance reform and it provides unwarranted advantages to special corporate interests at the expense of injured victims," Holden said.

Two key provisions

Missouri business groups that generally support Republicans, including the Missouri Chamber of Commerce and Industry, are among the most vocal proponents of the tort bill. A tort is a wrongful act that causes injury.

Two key provisions of general application involve limits on where cases can be brought and what is called "joint and several liability."

Dating back to English common law, the concept of joint and several liability is intended to ensure an injured party is made whole.

As currently applied in Missouri, a defendant found only partially at fault can be required to cover the entire damage award if co-defendants are unable to pay.

State Sen. Delbert Scott, the bill's upper chamber sponsor, said Missouri's joint and several policy is among the most generous in the nation.

"If you are 1 percent at fault in Missouri and have a deep pocket, you can be forced to pay the whole thing," said Scott, R-Lowry City. "Most states are not like that."

Under the bill, defendants would be liable only for their percentage of fault plus that of insolvent defendants whose fault is equal to or less than their own. For example, a defendant found 90 percent responsible would pay the whole award if the other party couldn't cover his share. However, a party 10 percent at fault wouldn't be responsible for the remaining 90 percent if that defendant were financially insolvent.

Missouri Association of Trial Attorneys spokeswoman Sharon Jones said state law should put the needs of victims first. The trial lawyers association, a top donor to Holden and other Democrats, opposes the bill.

"We are trying to protect people who are injured," Jones said. "It is more fair for the wrongdoer to pick up the tab than it is for taxpayers or the victim to pick up the tab."

On the venue issue, proponents of the bill claim plaintiffs' attorneys seek to file cases in St. Louis and Kansas City -- areas where jurors have a reputation for rewarding generous financial damages -- even when there is little or no connection to those jurisdictions.

Senate President Pro Tem Peter Kinder, R-Cape Girardeau, called Missouri's existing venue laws "indefensible" and in dire need of revision. The bill would generally require tort cases to be heard in the county where the alleged harm occurred.

"If it were the only thing the bill did, it would be worth passing," Kinder said.

While there is some agreement that abuses have occurred, courts routinely reject cases for improper venue. Jones said the bill would create overly broad venue restrictions.

"The legislature is trying to impose across-the-board standards when they don't know the facts of individual cases," Jones said.

Caps on damages

One provision of the bill specific to medical malpractice would cap damages for pain and suffering at $400,000 in most instances but set the limit at $200,000 if the injury occurs in an emergency room. The current limit for all medical malpractice cases is $565,000, with the amount adjusted annually for inflation. The new caps wouldn't rise under the bill.

Unlimited damages could still be awarded for medical bills and lost wages.

Despite the emphasis on what the bill would do to help doctors, opponents contend the insurance industry is the real culprit behind rising premium costs. They argue companies recouped investment losses they suffered during the recent stock market decline by raising rates.

According to a Missouri Department of Insurance report released earlier this month, malpractice claims fell to record lows last year while insurers enjoyed strong profits. Tort reform supporters dismissed the department's assessment as bogus and countered that if companies are doing so well in Missouri, then they would be flocking here to sell policies to create price competition, something that hasn't occurred.

Companion legislation that would limit rate increases has cleared both legislative chambers in different forms, but a compromise version hasn't yet been developed.

Holden has through May 7 to veto the tort bill or it automatically becomes law. Republican leaders say they will attempt a veto override before the legislative session ends a week later, but neither chamber appears to have the necessary two-thirds majorities for the effort to succeed.

Pringle, the Cape Girardeau doctor, said trial lawyers and their Democratic supporters would be wise accept the bill lest Republican Secretary of State Matt Blunt win the governor's race this fall and ensure enactment of potentially stricter legislation next year.

"They probably should have settled for what they could get and been happy with it," Pringle said. "Next time they probably won't be happy at all."

Senate Minority Floor Leader Ken Jacob, who led the fight against the legislation, said Democrats will never accept the bill as written.

"The remedy is worse than the disease; it creates many more problems than it resolves," said Jacob, D-Columbia. "It is just an unbelievable, horrible piece of legislation."

The bill is HB 1304.

mpowers@semissourian.com

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