January 9, 2003
MEDICAL MALPRACTICE REFORM IN MISSISSIPPI
By: George Coppolo, Chief Attorney
You asked for a summary of the medical malpractice law Mississippi recently enacted.
Mississippi recently enacted a medical malpractice reform act (HB2, 2002 Third Extraordinary Session). It takes effect on January 1, 2003.
With respect to malpractice cases filed in Mississippi, the act:
1. establishes a cap on noneconomic damages of $500,000 for lawsuits filed before July 1, 2011, $750,000 for those filed after July 1, 2011 but before July 1, 2017, and $1,000,000 for those filed thereafter;
2. makes defendants liable only for their share of noneconomic damages, limits defendants who are less than 30% at fault to their share of economic damages, and makes defendants who are more than 30% at fault jointly liable for economic damages to the extent necessary for the victim to recover 50% of his economic damages;
3. prohibits people from filing a lawsuit unless they give the defendant at least 60 days prior written notice;
4. requires that attorneys include a certificate with their lawsuit indicating they have a reasonable basis for the lawsuit based on consultation with at least one medical expert, unless they were unable to obtain a consultation after at least three separate good faith attempts to do so;
5. requires the state insurance commissioner to investigate and report to the legislature regarding the number of doctors who are unable to obtain malpractice insurance and to make recommendations concerning the establishment of an underwriting medical malpractice association to make insurance available; and
6. requires that the lawsuits be filed in the county where the alleged malpractice occurred.
LIMIT ON PAIN AND SUFFERING
The bill establishes the following caps on noneconomic damages for medical malpractice cases:
1. for lawsuits filed after the act's effective date and before July 1, 2011, $500,000;
2. for lawsuits filed on or after July 1, 2011, but before July 1, 2017, $750,000.00;
3. for lawsuits filed on or after July 1, 2017, $1,000,000.
The bill defines “noneconomic damages” (also known as “pain and suffering”) as subjective, nonpecuniary damages arising from death, pain, suffering, inconvenience, mental anguish, worry, emotional distress, loss of companionship, loss of consortium, bystander injury, physical impairment, injury to reputation, humiliation, embarrassment, loss of the enjoyment of life, hedonic damages, other nonpecuniary damages, and any other theory of damages such as fear of loss, illness or injury. The term “noneconomic damages” does not include damages for disfigurement, and does not include punitive damages. Thus, the act does not appear to establish limits on damages for disfigurement or for punitive damages.
The bill defines “actual economic damages” as objectively verifiable pecuniary damages arising from medical expenses and medical care, rehabilitation services, custodial care, disabilities, loss of earnings and earning capacity, loss of income, burial costs, loss of use of property, costs of repair or replacement of property, costs of obtaining substitute domestic services, loss of employment, loss of business or employment opportunities, and other objectively verifiable monetary losses.
The act prohibits the jury from being advised of these limitations. It requires the judge to reduce any award of noneconomic damages that exceeds these limits.
The act specifies that these limits do not apply in cases where the judge determines that a jury may impose punitive damages, or disfigurement is involved.
MULTIPLE DEFENDANTS—JOINT LIABILITY
Under the common law, each defendant in a negligence lawsuit involving multiple defendants was jointly liable for any damages the victim suffered as a result of the defendant's negligence. This meant that the victim could collect the entire damage award against any one of the defendants. A defendant required to pay more then the percentage of damages attributable to his negligence would be able to sue the other at-fault defendants to be reimbursed for any amounts he paid above his share of the damages.
The act establishes a special way to allocate damages in medical malpractice cases involving multiple defendants. Under the act, defendants are liable only for their share of noneconomic damages. For example, if the jury determine a doctor's share of the fault was 25%, he would only be required to pay 25% of the victim's noneconomic damage award. Any defendant whose fault is determined to be less than 30% is only responsible for his shares of the victim's economic damages. Defendants who are more than 30% at fault, are jointly liable to the extent necessary for the victim to recover 50% of his economic damages.
Under Mississippi law, unchanged by the act, defendants who consciously and deliberately pursue a common plan to commit an act that they can be sued for, or actively take part in such a plan, are jointly liable for all economic and noneconomic damages allowed by law.
NOTICE OF MALPRACTICE LAWSUIT
The act prohibits people from filing a medical malpractice lawsuit unless they give the defendant at least sixty days prior written notice of their intention to do so. No particular form of notice is required, but it must notify the defendant of the legal basis of the claim and the type of
loss sustained, including the nature of the injuries suffered. If the notice is served within sixty days before the applicable statute of limitations expires, the time to file the lawsuit begins sixty days from the service of the notice.
This requirement does not apply to any defendant whose name is unknown to the plaintiff when he files the complaint and who is identified in the complaint by a fictitious name.
The act requires that a malpractice complaint be accompanied by a certificate executed by the attorney for the plaintiff declaring either that he:
1. reviewed the facts of the case and consulted with at least one expert qualified pursuant to Mississippi's court rules to give expert testimony as to the standard of care or negligence and who the attorney reasonably believes is knowledgeable in the relevant issues involved in the particular action, and that the attorney has concluded on the basis of such review and consultation that there is a reasonable basis for the lawsuit;
2. could not obtain this consultation because the statute of limitation would expire; or
3. was unable to obtain the consultation because the attorney had made at least three separate good faith attempts with three different experts to obtain a consultation and that none of those contacted would agree to a consultation.
If the attorney could not obtain the consultation because the statute of limitations would expire, the act requires that the attorney file a supplemental certificate within sixty days after service of the complaint or the suit will be dismissed.
The act requires only a single certificate for an action, even if more than one defendant is named in the malpractice lawsuit.
A certificate is not required where the attorney intends to rely solely on either the doctrine of “res ipsa loquitur” (a legal doctrine that a victim in a negligence case need not show exactly how the defendant caused an accident if the accident was of a type that normally could not have occurred but for some negligence by the defendant) or “informed consent” (consent given after receiving sufficient information about the nature, costs, risks, and benefits of a proposed course of action to make an
intelligent decision; in the absence of such information, one's consent may not be legally valid.) In such cases, the act requires the complaint to be accompanied by a certificate executed by the attorney declaring that he is solely relying on such doctrine and, for that reason, is not filing a certificate.
Under the act, if a request by the victim for the records of his medical treatment by the defendants was made and the records were not produced, the victim is not required to file the certificate until ninety days after the records are produced.
The act specifies that an attorney who submits a certificate of consultation is not required to disclose who he consulted with or the contents of the consultation. But, if he claims that he was unable to obtain the required consultation with an expert, the court, upon, a defendant's request, may require the attorney to divulge to the court privately, and without any disclosure by the court to any other party, the names of physicians refusing such consultation.
The certificate requirement does not apply to a plaintiff not represented by an attorney. The act allows a plaintiff, instead of serving a certificate, to provide the defendant with expert information in the form required by the Mississippi Rules of Civil Procedure.
The bill specifies that it does not require the disclosure of any “consulting” or nontrial expert.
INSURANCE COMMISSIONER REPORT
The act requires the Commissioner of Insurance to determine the number of physicians licensed by and practicing in Mississippi who are unable to obtain medical malpractice insurance. The commissioner must report such information and other information that he determines affects the medical profession to the legislature by January 5, 2003.
The act requires the commissioner to make recommendations to the legislature by January 5, 2003, concerning the establishment of an actuarially sound joint underwriting medical malpractice association to make necessary medical malpractice insurance available for physicians,
registered nurses and all other personnel who are duly licensed to practice in a hospitals, nursing facilities or assisted living facilities. The need and funding for such association will be determined by the legislature.