"The Unspecial Session"

Lawmakers have offered voters a comparison chart showing the similarities and differences of each Tort Reform issue. It's a handy comparison chart that does help explain where the two legislative bodies agree and disagree. All that said, I think the average voter still has a difficult time deciphering the legal lingo. Here's my feeble attempt to understand the differences and the agreements in simple laymen's terms.

(ISSUE-VENUE)
Senate AND House both agree. Both bills eliminate venue-shopping in malpractice actions.

(ISSUE-GOOD SAMARITAN)
Senate- The Senate states that immunity would be provided to health care providers who provide health services at Mississippi schools, AND doctors who volunteer health care services under a special volunteer medical license. (Unless there is an incidence of gross negligence. There is a difference between malpractice and gross negligence.)

House- The House's version says OK to the same health care providers at Mississippi schools AND to our doctors in Mississippi, BUT specifically deletes all psychologist and physician assistants from immunity coverage according to the latest chart posted. Why? What does the House have against those two professions? Are those exemptions inserted language for the purpose of disagreement?

(ISSUE-PRODUCT LIABILITY IN PHARMACEUTICAL CASES)
Senate- Doctors and other licensed professionals who prescribe drugs, including pharmacist and pharmacies, would be provided immunity in civil actions when suits are filed alleging damages caused by drugs prescribed. The only exception would be when it is a clear case of negligence by the aforementioned. And even then, they can't be named in the suit unless negligence is proven in selling or administering a drug.

House- The House bill mirrors the Senate's version EXCEPT, the House would agree ONLY to provide immunity to doctors, pharmacists, licensed pharmacies, nurse practitioners and physician assistants. In other words, the Senate version is open-ended with language that states, "and other licensed professionals". The House version narrows the immunity coverage by explicitly naming those covered.

(ISSUE-CAPS)-This is a three part issue
Senate (Actual Damages)- Also called Economic Damages. The Senate bill would have no caps on actual damages, including disfigurement and physical impairment. In other words, the plaintiffs' award for full medical bills, wages loss, etc., would have NO cap.

House(Actual Damages)-The House bill is the same; however language specifies that disfigurement and physical impairment are defined as an item of "economic damage".

Senate (Non-Economic Damages)-The Senate bill caps Non-Economic damages (pain and suffering) at up to $700,000.00. The Senate's version does not have an inflation adjustment clause included for the future. Language also inserted would specify that juries are not to be instructed of the cap during litigation. Again, why?

House (Non-Economic Damages)-The House bill caps Non-Economic damages (pain and suffering) at up to $1,000,000.00 or only $300,000.00 more than the Senate bill. The other difference in the House bill is, it DOES provides an adjustment clause for inflation.

Senate AND House (Gross Negligence)-Both Senate AND House agree to an "escape clause "when there is gross negligence, willful indifference or reckless disregard." Does this mean the judge can set aside meaningful tort reform anytime he or she decides there has been "gross negligence, etc."? Doesn't this really neuter meaningful Tort Reform by retaining some core of Jackpot Justice? With no cap limit formula to follow, the sky is STILL the limit. How does this really solve the insurance problem?

(ISSUE-RISK POOL)
Senate AND House -Both agree that the Insurance Commissioner is to do a further study pertaining to an insurance risk pool and make a report to the full Legislature in the next regular session (January 2003).

(ISSUE-JOINT AND SEVERAL LIABILITY)
Senate-The Senate bill would hold liable the so-called, "joint tort-feasor". This is someone or some company enjoined into litigation no matter if actual culpability is almost non-existent. In the Senate bill, you would be held liable financially at the same percentage as your percentage of fault. The Senate version further states that, "fault is not transferable to another defendant."

House-In a major sticking point blocking tort reform, the House version only goes so far as to say the "Joint tort-feasor" percentage protection, would apply to the Non-Economic damages ONLY. That means in the other stages of the judgement (Economic or actual damages and maybe even punitive damages) even if you're 1% at fault, you could bear up to 50% of the financial responsibility.

(ISSUE-EXPERT OPINION)
Senate- The Senate version requires the plaintiff's attorney to file a certificate of consultation prior to submitting expert testimony or opinions.

House- The House bill is similar, but contains an exception. If the plaintiff's attorney tries three (3) times to obtain an expert, a certificate of consultation is not required.

(ISSUE-GENERAL PRODUCTS LIABILITY)
Senate- The Senate bill would be amended to conform to the current FDA drug prescriber immunity and follow those legal guidelines.

House- The House bill would not only do that, but would go farther. The House's version makes an agent or employee of a drug manufacturer liable for, quote- "tortious conduct committed in the scope of employment". This means those who are employed directly or indirectly with the pharmaceutical industry would be held liable should they intentionally commit "Tortious conduct" while employed within the aforementioned industry. The House bill also provides legal immunization to medical providers who are not "actively negligent from forum shopping driven suits." If a doctor correctly and innocently prescribes FDA approved medication, he or she would not be held responsible.

(ISSUE-STATUE FOR NURSING HOMES)
Senate AND House- Both sides agree to reduce to two years the statute of limitation on lawsuits against nursing homes. Both also agree that attorneys for the plaintiff(s) must file a sixty (60) day notice of a lawsuit to be filed against any medical provider.

(ISSUE-MEDIATION BOARD)
Senate AND House- Both Senate AND House have NO legislation in the works at this time for a Mediation Board.

(ISSUE-CONFIDENTIALITY OF MEDICAL RECORDS HELD BY NURSING HOMES)
Senate AND House- Both sides agree that medical records held by nursing homes are confidential, but must be disclosed to nursing home residents or their representatives or health care providers upon written request.

(ISSUE-REVISE DEFINITION OF "EMPLOYEE" UNDER TORT CLAIMS ACT)
Senate AND House- Both sides agree that the revised definition of "Employee" will include protection under the Tort Claims Act for all doctors at UMC, the Veterans Affairs Board, as well as the IHL campuses.

(ISSUE-EFFECTIVE DATE)
Senate- The effective date will be upon passage and applies to ALL lawsuits FILED on or after the new law becomes effective.

House- The effective date will be upon passage and applies ONLY to lawsuits OCCURRING on or after the new law becomes effective.

There are fifteen separate issues that both the House and Senate Conferees are debating. If this was a journey of fifteen miles over varied terrain, the lawmakers have mastered only six of the easiest landscapes. Facing them, when they return once again in October, will be nine impassable mountains that make Mount Everest look like Mississippi's Woodall Mountain. And one more thing; neither body is addressing Punitive Damage Caps during the Med Mal Unspecial Session. Lawmakers I've interviewed on the air say that issue will be addressed when the Legislature tackles Civil Justice Reform. I'm afraid people who believe that are the same ones who have Ms. Cleo on speed dial!

Paul Gallo

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