'MedMal:' Medicaid should conform to limits

The Clarion-Ledger

Opponents of Senate Bill 2998 limiting the damages a Medicaid recipient can receive in a medical malpractice lawsuit to $500,000 claim it would penalize the poor.

Seen in a vacuum, these claims tug at the heartstrings, but they fail to take into account Mississippi’s history of tort reform.

Some may not remember that less than a decade ago, the state faced a crisis in the availability and affordability of “MedMal” insurance. Doctors were retiring early, leaving the state and limiting high-risk services. Hospitals couldn’t retain doctors or recruit new ones with rising insurance rates.

Under former Gov. Ronnie Musgrove, the 2002 Legislature capped non-economic “or pain and suffering” damages in medical malpractice lawsuits at $500,000.

However, this cap was not a “hard” cap in that it expanded to $750,000 in 2011 and $1 million in 2017.

The 2002 Legislature also enacted key reforms on venue (i.e. limiting the counties where lawsuits can be filed), and joint and several liability (i.e. the amount of money defendants are required to pay in civil lawsuits when they are found partially at fault).

It was a historic moment for the state to enact these limits. But insurers and businesses complained that tort reform was only half done, both in civil justice (business) and medical malpractice reforms.

Some groups labeled Mississippi a “judicial hellhole” for frivolous lawsuits. Gov. Haley Barbour campaigned on the issue, saying he would finish the reform job.

So, in 2004, under Barbour, the Legislature passed a comprehensive package of business tort reforms and expanded on medical issues from 2002, including a “hard” cap of $500,000 on “pain-and-suffering.”

In all these battles, the essential element should be remembered that it is not the amount of the cap that’s key, but that a cap is set. Insurance companies must have a standard to determine risk, some basis for potential losses. Caps on non-economic damages do just that.

As shown by The Clarion-Ledger’s 2002 series “Fighting Lawyers, Fleeing Doctors: Seeking A Cure,” caps vary from state to state, with some having as low as a $250,000 cap on non-economic damages.

In 2004, when retooling tort reform, the Legislature kept the $500,000 pain-and-suffering cap adopted in 2002 for medical malpractice cases, but that cap didn’t extend to physicians in Medicaid cases.

Currently, those physicians could be sued for up to $1 million. The bill the Senate passed this week would extend the Tort Claims Act and $500,000 limit to include physicians who accept Medicaid patients.

So, is it “unfair” to limit jury awards in medical malpractice cases for Medicaid recipients?

Trial lawyer representatives are adamantly against caps of any kind and think any are unfair (though the key may be punitive damages, which a judge sets).

The Legislature, and presumably citizens who have voted for two governors promising reform on the issue, apparently disagree.

Medicaid recipients should be held to the same standard as all other citizens, and have the cap set at $500,000.
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