New Crisis in the Mississippi Delta
Litigation as a Health Care Challenge
By Kurt Kooyer '86, M.D.

Kurt Kooyer with Mrs. Laura and President George W. Bush

In his book, Delta Doctor, Dr. Peter Boelens details his experiences during 20 years of practice in the Mississippi Delta. He relates the many challenges, obstacles and crises he faced in an effort to improve the condition of the impoverished people he served. He recalls floods and tornadoes threatening the physical existence of his medical clinic. He recalls facing the overwhelming oppression of one social class of people by another. He recalls fighting disease with limited tools and referral options. But there is one challenge Dr. Boelens has told me he never had to consider while practicing in the Mississippi Delta: a lawsuit.

Following Dr. Boelens’ example, I moved south to a part of the rural Mississippi Delta where 50 percent of the people live in poverty, where unemployment can exceed 30 percent during the non-growing season, where nearly 90 percent of black infants are born to single moms, where the teen pregnancy rate is about the highest in the nation and where in a county burdened by social ills, one social worker is responsible for 7,000 people.

And like Dr. Boelens, I experienced the intrinsic rewards of practicing in a place where innovative programs and hard work resulted in significant reductions in infant mortality, the stabilization of a rural hospital on the brink of financial collapse, and improved health care in a historically medically underserved region. But unlike Dr. Boelens, I watched as a litigation mentality crept into the Mississippi Delta, fueled by a favorable judicial environment. I have had to personally deal with the harassment of unmerited litigation along with its consequences to my family, my practice and, ultimately, my idealism.

The State of Litigation
According to the American Medical Association (AMA), 19 states, including Mississippi, are now in a health care crisis. Their citizens are seeing a significant reduction in access to doctors and certain high-risk specialties. Of the remaining 31 states, only six are not showing signs of trouble.

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Readers Respond
Read a response from Paul Zwier and the opinions of other readers — and let us know what you think!

Just What the Doctor Ordered?
Mississippi's Clarion-Ledger (July 29, 2002) reports on Kooyer’s decision to leave the state

"Will your physician be there? The medical liability crisis in America"
AMA president Donald Palmisano’s address to the National Press Club

American Tort Reform Association

American Medical Association
The AMA provides advocacy resources for those interested in medical liability reform

The Luke Society
After retiring from the Luke Society in 1998, Dr. Peter Boelens began a new medical ministry in his own community of Vicksburg, Miss.

This crisis has not come about because doctors have suddenly lost interest in caring for their patients. This crisis in access to medical care is attributed to the increasing cost and, in a growing number of cases, the unavailability of malpractice insurance. Trial lawyers insist that insurance companies have been forced to raise rates because of poor investment income. This is partly true. Throughout the late 1990s, the malpractice insurance business was highly competitive, with some carriers offering artificially low rates to acquire new accounts. The low premiums were supported by strong reserves built up over years of high investment returns. With the declining stock market and recent reduction in investment income, these carriers now realize that the premiums they were charging are not enough to cover their losses.

For the St. Paul Company, a major national insurer which elected to exit the medical liability insurance market in 2001, net investment losses were around $400 million that year. But the company will be quick to add that of the nearly $1 billion they lost in 2001, well over half was due to increasing legal expenses: attorney costs, court fees and a disturbing increase in jury awards rendered in medical liability cases. In 1999 the St. Paul Company paid out $101 for every $100 it collected in premiums. By 2000, the payouts soared to $360 for every $100 collected. Even in a strong economy, a business cannot withstand those kinds of losses.

These numbers reflect national trends in malpractice awards. According to a report put out by the U.S. Department of Health and Human Services last year, the average malpractice jury award in 1999 was approximately $800,000. One year later, the average award had increased to $1.1 million. And that average continues to rise, along with malpractice insurance premiums.

Mississippi’s numbers are worse. Since 1995 Mississippi has had close to 100 jury verdicts exceeding $1 million. Together, 23 of them have totaled more than $10 billion, and since last year, Mississippi juries have awarded a total of $61 million in eight medical malpractice cases. According to Jury Verdict Research, Mississippi, which is 31st in the nation in population, is now fourth in the nation in million-dollar verdicts. Seemingly every physician colleague I knew within a 50-mile radius of my Delta practice has been sued in the past three years — one of them close to 30 times.

Some venues in Mississippi have become famous. Perhaps the most recognized is Jefferson County in rural southwest Mississippi. Jefferson County has been featured on 60 Minutes, cited in the Wall Street Journal, and singled out by the National Law Journal as one of the most generous venues in the nation. The American Tort Reform Association calls it a “judicial hellhole.” Juries there have awarded hundreds of millions of dollars in verdicts in asbestos and drug litigation. So popular is Jefferson County among plaintiff attorneys that more than 21,000 plaintiffs have come through its Circuit Court in the past few years. Jefferson County has a population of 9,000 people.

The year after a Jefferson County jury awarded $150 million to five plaintiffs who claimed they were injured by the diet drug Fen-Phen, a jury in Holmes County, Mississippi, awarded $150 million to six workers who had been exposed to asbestos at work. The plaintiffs’ attorney was quoted in the Clarion-Ledger, Mississippi’s largest newspaper, as acknowledging that none of his clients actually had asbestosis.

The same year, a jury in Sharkey County, where I lived and practiced for eight years, awarded $10 million to the family of a man who had electrocuted himself by touching a pipe to a power line. As the treating physician in that case, as well as a resident of the county, I was interested in knowing what culpability the jury felt the defendant electric company had in the electrocution. One of the jurors told me, “Oh, we didn’t think the electrical company did anything wrong, but this way the children will be taken care of.”

Interestingly, according to 2000 U.S. Census Bureau statistics, Jefferson, Holmes and Sharkey Counties were ranked as the first, second and third poorest counties in Mississippi, respectively. Coincidence? Or perhaps trial attorneys have found another way to exploit poor folks in Mississippi counties, where less than half the jury pool has a high school education.

The Letter of Tort Law
As troublesome as the staggering statistics is the manner in which our judicial system appears to have so easily dispensed with the basic elements of tort law: In order to have a claim, a defendant must have been negligent, and that negligence must have caused injury to a plaintiff. According to a study by the Harvard School of Public Health, in the majority of cases in which a jury finds against a physician in a malpractice trial, the physician has not been negligent. The Harvard study revealed what physicians had already suspected: only the degree of injury, not negligence, predicts how a jury will decide a malpractice case.

And what about injury? Suspicions abound that injury in tort cases is often exaggerated. Indeed, I was confronted with cases in which injuries weren’t just exaggerated; they were made up altogether. I recall a patient who admitted that she hadn’t been injured by a drug, but she considered her legal settlement “a blessing” anyway. In a case that received national attention, I was sued by a woman who admitted publicly that she had not been harmed by a medication I had prescribed for her but was hoping she “might get a couple of thousand dollars” in a settlement.

Doctors admit that they find themselves increasingly practicing “defensive medicine”— ordering tests, making referrals to subspecialists and prescribing medications — not because these measures are medically appropriate, but because the doctors anticipate a plaintiff lawyer’s confrontation in the courtroom. Defensive medicine is terribly costly, unnecessarily driving up the cost of health care. But no amount of defensive medicine will prevent doctors from being sued if cases in which they have not been negligent, and in which no injury has occurred, are allowed to be brought against them.

The Greatest Costs of Litigation
In 2001 the average cost of defending a malpractice lawsuit, whether it was won or lost, was nearly $25,000. This year, an obstetrician in Miami will pay $249,000 for malpractice insurance, and, collectively, physicians in this country will spend $6 billion. Hospitals and nursing homes will spend billions more. According to one study referenced in last year’s U.S. Department of Health and Human Services report, defensive medicine costs the federal government between $25 and $44 billion each year. Non-economic and punitive damage awards in runaway jury verdicts are measured in hundreds of millions and even billions of dollars.

Far greater costs to society cannot be measured in economic terms. They are felt most acutely by those patients and their families who are losing access to health care as their physicians retire early, exit their high-risk specialties, or leave a geographic area altogether. Medical fields most frequently targeted in high-dollar litigation are the most affected. In a recent address to the National Press Club, AMA president Donald J. Palmisano, M.D. gave several disturbing examples of what is happening across our country. A nurse in Arizona delivered a baby on the side of the road to a mother who was trying to drive 40 miles to an obstetrical facility after her hospital closed its maternity ward. In July 2002, the only Level I Trauma Center in Las Vegas closed for ten days while its trauma surgeons searched for affordable liability insurance. Mississippi has its own tragic examples. Last year, Tony Dyess, returning to his home in Vicksburg from the Gulf Coast, suffered a serious head injury in an automobile accident. The closest hospital had recently lost its neurosurgical services because of the liability crisis, and delays in treatment left Mr. Dyess with devastating brain injuries. His wife has testified before Congress regarding their family’s tragedy.

Perhaps no individual has suffered more than Dr. John Lucas III from Greenwood, Miss. Dr. Lucas, a fourth-generation Mississippi physician, is a trauma surgeon who was instrumental in setting up Mississippi’s statewide trauma network to speed victims of trauma from rural areas to appropriate medical care. In the past year, Lucas has been forced to witness the dismantling of the trauma network because of declining numbers of trauma surgeons in Mississippi. Additionally, he has had to personally deal with three distracting medical malpractice lawsuits, which he considers frivolous. And this past spring, his oldest son sustained a critical head injury in an automobile accident near Greenville, Miss. Last year, Greenville had well-established neurosurgical services. This year the last neurosurgeon providing emergency services in Greenville left the state. After his accident, vital neurosurgical care was delayed while Dr. Lucas’ son was transported 100 miles to the University Medical Center in Jackson. Dr. Lucas, a well-respected surgeon who worked diligently to improve trauma care in his state, who was personally dragged into Mississippi’s lawsuit frenzy, helplessly watched his precious son linger in a coma for several weeks and die for lack of expedient medical care.

Rampant litigation is irreparably harming something long considered sacred in medicine: the doctor/patient relationship.

America’s lawsuit mentality has another important non-economic cost. Rampant litigation is irreparably harming something long considered sacred in medicine: the doctor/patient relationship. The traditional relationship between a doctor and patient has been covenantal. This is as it should be in an affiliation that frequently faces the pain and suffering of an imperfect world. This covenantal relationship includes one individual who becomes vulnerable and stands in need of the talents of another. And it includes an individual who, though possessing imperfect knowledge, promises to utilize his or her talents to the best of his or her ability. The involved parties build rapport by respecting and investing in each other.

This covenantal relationship has been converted by our litigious society into a contractual relationship. While covenants have altruistic motivations, contracts are remunerative. In a covenant, a patient expects a physician’s best care. In a contract, a patient expects perfect care and a perfect outcome, every time. Covenantal agreements recognize the presence of a broken world where no amount of medical technology will ultimately ever save anyone from the grave. Contracts come with money-back guarantees. A covenantal relationship is cooperative, collaborative and deferential. A contractual relationship is adversarial, oppositional and suspicious. Covenants encourage people to give of themselves. Contracts protect self-interests. In a covenant, physicians are physicians and patients are patients; in a contract, physicians are providers and patients are consumers. Because of the current climate of litigation in our country, defense attorneys teach physicians to approach every patient as a potential plaintiff. When a bad outcome does occur, even when there has been no negligence, legal counsel now warns doctors to resist their compassionate instincts to reach out to a patient or family for fear of looking guilty.

Dr. Carlo Urbani, father of three and president of the Italian branch of Doctors Without Borders, was working in Hanoi this past winter when he recognized the severity of the respiratory illness in one of his patients, an American businessman. A hospital spokesman said Dr. Urbani was at his patient’s bedside night and day, collecting samples, talking to staff and strengthening infection control procedures. As the businessman became more ill, Dr. Urbani continued to supply compassionate covenantal care. He never abandoned his patient. He took to heart the physician-patient relationship. Dr. Urbani’s patient eventually died and became the first recognized SARS victim. Tragically, Dr. Urbani, exposed to the causative virus, also contracted SARS and died.

We have many fine doctors in America who have made great sacrifices for their patients. But, desperate because of an oppressive climate of liability, we also have doctors retiring early, walking out on the job in frustration or leaving geographic areas of need. Doctors are being forced to change their priorities. Lawyers are defining the doctor/patient relationship. The covenantal spirit of that relationship has been significantly damaged. And the personally destructive nature of litigation has been repugnantly and euphemistically reduced to “the cost of doing business.” These are trends all Americans should find terribly disturbing.

Is there a cure?
When litigation is pursued in cases where there has been no negligence and where there has been no injury, not only is tort law not fulfilled, but an important moral teaching is also forgotten. A great deal of the current debate on tort reform focuses on whether poor investments or mega-jury verdicts are responsible for the skyrocketing costs of malpractice insurance. While this discussion is important, I don’t think we should be distracted from what is at the heart of our nation’s tort crisis: a crisis in personal morality. We were taught from an early age not to accuse falsely and not to take something that doesn’t belong to us. When litigation is pursued in cases where there has been no negligence and where there has been no injury, not only is tort law not fulfilled, but an important moral teaching is also forgotten. When moral teachings are forgotten, there are consequences. Sometimes there are major consequences.

Fixing a crisis of moral character is a difficult thing to do, but, as we stand by, tragic stories in medicine are accumulating. Clearly, something must be done to rein in an out of control tort system that seems to be driven no longer by a desire to protect the rights of citizens who have truly been injured but rather by greed. We know from the example of states like California that placing reasonable limits — “non-economic damage caps” — on how much someone can collect for pain and suffering or the loss of enjoyment of life has reduced the filing of “junk and frivolous” lawsuits and stabilized the liability insurance market. California is not suffering a crisis in access to health care.

While there are those who argue that such limits won’t adequately compensate the pain and suffering of some victims of medical malpractice, the fact is that in this country time has expired on that discussion. The privilege of further debate has been stripped from us by those who make false accusations and by those who have taken what doesn’t belong to them. Many rightly argue that our tort system does not accurately assign blame, nor, with lawyers’ contingency fees approaching 40 percent of a verdict, does it fairly compensate victims. But even if it did, we simply cannot afford it anymore.

Consequently, the tort reform debate is not about how much someone should be reimbursed for their pain and suffering. It is not about deciding the value of a human life. It is not about whether patients should be adequately or inadequately compensated in the event of injury. The tort reform debate is about finding a practical way to eliminate costly, unmerited, immoral litigation. The fix won’t be simple. The liability reforms recently introduced in the House and Senate are only the beginning, not the end, of the discussion. But something must be done soon, or many more desperate Americans are going to be suffering the ill effects of a diseased tort system that the medical community is powerless to cure.

— Kurt Kooyer ’86 received the National Perinatal Association’s Individual Recognition Award in 2001. Dr. Kooyer is currently employed as a staff physician for MeritCare Health Systems in Fargo, N.D.