Jackson Free Press

The Mississippi Association for Justice is accusing Gov. Haley Barbour of playing politics with a wrongful-death case in Bolivar County. "Haley Barbour's recent motion to the Supreme Court to reconsider a previous decision based on tort reform is inconceivable and ill-advised," said Steve Mullins, president of the Mississippi Association for Justice. "His motion is full of false and politically motivated information, and it violates the separation of powers as intended by our founding fathers."

The organization of trial attorneys is opposing Barbour's and the Mississippi State Medical Association's August 27 joint request for the Mississippi Supreme Court to reconsider a July 23 decision to allow a wrongful-death lawsuit against a Delta doctor for not doing proper tests to go forward.

Mullins criticized Barbour and a host of other organizations joining in the amicus brief, saying, "there is no way the Supreme Court's decision to uphold long-standing rules previously established by the Court and Legislature is going to change anything in regards to tort reform."

"The rules," Mullins said, "are intended to apply equally to all people, be they wealthy business owners or poor farmers, and that is the way it should stay."

Doctors diagnosed Nina Price's husband Albert Price, Jr., with a pituitary tumor April 9, 2004, only four months prior to his death on Aug. 14, 2004. Nina Price filed suit against Dr. Steven Clark and his employers, arguing that Clark was responsible for her husband's death because he had failed to accurately diagnose the man's ailment until it was too late. At no point prior to 2004, according to their complaint, did Clark or his cohorts perform a MRI or CT scan for potential neurological problems, even though Price's mobility slowly deteriorated from cane to wheelchair to bed-ridden status over a four-year period.

The trial court concluded in August 2007 that Price was unable to establish any genuine issue of material fact that Clark had deviated from the standard of care at any point during the period of time from Oct. 2003 through Jan. 2004. But the court also found that Price had violated state statutes regarding the proper notification of defendants before filing suit. The court decreed that the ruling came two years after the suit was filed, so the one-year statute of limitations barred her from going back and correctly notifying the defendants.

Price first filed suit Aug. 31, 2004, and mailed notice-of-claim letters one day earlier, on Aug. 30, 2004. Price admits in court filings that she selected that date to avoid a $300,000 cap on non-economic damages effective Sept. 1, 2004, as a result of Barbour's newly enacted tort reform laws, designed to discourage suits against Mississippi health professionals.

The plaintiff argued that she should not be subject to the non-economic-damages limit because the law granting partial immunity to physicians was not in effect at the time of her husband's death.

The Supreme Court disagreed with the lower court's dismissal of the suit based upon Price's file date: "We agree with Price that the August 31, 2004, complaint was properly filed and served within both the one-year statute of limitations under MTCA and the two-year statute of limitations under Section 15-1-36," the court said, with Justice Carlson speaking for the court. "...[T]he trial court erred in dismissing these defendants with prejudice, given that the complaint served to toll the statute of limitations until the trial court's July 2006 ruling."

Semi-retired Attorney Alex Alston has written on the Mississippi Supreme Court's recent bias against defendants. His research revealed in 2008 that between 2004 and 2008—the years when pro-business lobbyists like the U.S. Chamber of Commerce successfully funded the campaigns of a host of pro-defendant judicial candidates—the state Supreme Court reversed 88 percent of all jury verdicts in favor of victims. He also determined that during that same period, plaintiff's success rate in reversing a jury verdict for the defendant in the court was zero.

Former Chief Justice Jim Smith denied Alston's information at a 2008 political event in Neshoba County. He claimed he had proof of his denial in a folder he carried with him, but he refused to show the folder's contents to a Jackson Free Press reporter.

Alston told the JFP that he would not have expected the court to render such a decision last year, prior to the 2008 elections, which saw the unseating of the pro-business Smith to Jim Kitchens.

"I've noticed in the last year and after the last election that things have been far more balanced in the Supreme Court," Alston said. "All we've asked is that they follow the rule of law, and the law in the Price case is that when you file your complaint that tolls the statute of limitations."

Still, the Mississippi State Medical Association says the Supreme Court's decision opens the door to "tolling abuse," wherein plaintiff attorneys can use the murky definition of the law to extend the statute of limitations on suits.

"The built in tolling provisions of (2004 tort reform) statutes were intended to be exclusive and were to afford pre-suit opportunities to investigate and resolve claims so that suit might be avoided. Where pre-suit conditions precedent to access to court are ignored, the defendant is forced to both litigate and investigate," the MSMA states in its August amicus brief.

The association goes on to defend tort reform, claiming that the Supreme Court knows about lawsuit abuse leading up to the 2004 legislation, which allegedly put the state in "a deep medical liability crisis."

"Large areas of our state had no doctors in critical medical specialties due to the high cost or outright unavailability of medical malpractice insurance at any price. Other areas were severely underserved. History reflects that malpractice premiums skyrocketed. Eventually, virtually every out-of-state insurer of physicians and other health care providers pulled out of Mississippi beginning in the late 1990's through 2000 and 2001 due to the extremely high negative loss ratios they were experiencing," the association claims.

The Mississippi Association of Justice argued against that allegation in their own statement this week, submitting American Medical Association statistics showing that the numbers of doctors in the state actually increased 14 percent between 1998 to 2002—allegedly the years when MSMA claims lawsuit abuse was driving doctors out of the state.

"Since the passage of tort reform in 2002, the number of doctors has only increased 2.4 percent. Nationally, the number of physicians per 100,000 population is 13 percent higher in states without caps," Mullins said.

Previous Comments

ID

151896

Comment

Barbour and friends (including much of the state's media) have been fibbing about "jackpot justice" and "tort reform" for years now. Read a story I wrote back in 2003, busting many of the myths, including those mindlessly pushed by The Clarion-Ledger and its star reporters. And be sure to read the non-partison Goverment Accounting Office reports referenced in my story. Then tell the tort-reformers to stop. lying. to. us.

Author

DonnaLadd

Date

2009-09-14T12:53:59-06:00

ID

151901

Comment

Outside of the Tort reform issue... It seems Ms Price knowingly gamed the system for a bigger gain. I'm mystified why the Supremes are making law (or outright ignoring it) here rather than following what the legislature wrote.

Author

Ironghost

Date

2009-09-14T20:27:31-06:00