The Real Crisis: Healthcare in Mississippi

By: MAJ President Joey Diaz

As humans, we have a marvelous capacity to think and imagine what is true and what is just. We have often heard it said that, as attorneys, we have an obligation to seek what is true and what is just without any thought of ourselves. We are often called upon to weigh truths and justice and to navigate through difficult challenges to find and to discover the truth.

What is the truth about healthcare in Mississippi? And, should we dare ask the question, has health care improved since our legislature decided to change the law to protect healthcare providers by reducing accountability for their mistakes?

According to reports over the past several years, serious disciplinary actions against doctors in Mississippi have declined. This year Mississippi ranked last in the nation for disciplinary action against doctors. Does that mean our doctors are smarter and that they make fewer mistakes? Does that mean that our health care system is better than that of the other states? Or, does it mean that the medical errors are still occurring, but the medical profession has relaxed its own disciplinary system thus reducing doctors’ accountability?

Mississippi was ranked last on the U.S. Health Systems performance national score card on the measure of a safe environment for medical patients. Only two states, one of which was Mississippi, ranked in the bottom quartile in all five dimensions measured for healthcare: access, quality, avoidable hospital use and cost, equity, and healthy lives. Are we are doing better?  No, in fact, we are dead last! (No pun intended.)

In their landmark 1999 report, To Err Is Human, the Institute of Medicine (IOM) estimated that the annual cost of medical error is between $17 billion and $29 billion.[1]  Despite some improvements following the study, not enough has been done to curb the epidemic of medical error; studies show billions of dollars are wasted each year and thousands of lives needlessly are lost. For example, in its 2006 report, Preventing Medication Errors, The Institute of Medicine concluded that medication errors alone cost hospitals $3.5 billion annually.[2] In addition, medical errors cost thousands of lives each year.  In its 1999 report, the IOM determined that medical errors cause between 48,000 and 98,000 patient deaths each year.[3]  Tom Baker an expert in medical malpractice liability, has found that:

“One very clear conclusion emerges from the research on medical malpractice and medical malpractice lawsuits: the real medical malpractice problem is medical malpractice.  It is not pretty to say, but doctors and nurses make preventable mistakes that kill more people in the United States every year than workplace and automobile accidents combined.”

In fact, there were 931 traffic accident related deaths and 371 alcohol related deaths in the entire state of Mississippi in 2005[4] -- far fewer than the reported deaths due to medical mistakes. Not only are more people killed by medical mistakes, their families are compensated less and less often! In other words, doctors, hospitals, but more importantly, their insurance companies, pay less and profit more from these errors.

Medical errors cause needless pain and suffering for thousands of innocent patients and their families. Baker found that one in every 100 hospitalized patients become a victim of medical error.[5] What if you were planning to fly to your favorite vacation spot and the pilot announced two or three of you on this jumbo jet will fall from the sky and will be seriously injured or killed?  The FAA would not let the aircraft off the ground! Why is the Mississippi Medical Association not doing more?

Medical errors are an important factor driving up health care costs, not medical malpractice premiums. Medical malpractice liability costs account for less than one percent of all health care spending.[6] Have costs to consumers come down in Mississippi since the legislature changed the laws? No. In fact, they have increased.

The insurance lobby illogically claims that medical malpractice litigation drives up physicians’ premiums, and so restricting patients’ legal rights would reduce premiums. However, this argument ignores the cyclical nature of the industry, which is now in a soft market with premiums declining or stabilizing. In fact, the commercial insurance industry, including medical malpractice liability coverage, saw profits soar to all-time highs in the last three years.

The recent report by Americans for Insurance Reform also details huge profits for commercial insurers, including medical malpractice liability insurers. According to co-founder J. Robert Hunter:

“It now appears clear that the industry’s record profits in 2004 and 2005, and the exceptional record profit to be reported for 2006, are due in large part to the years of huge rate hikes in the earlier part of the decade, which were not caused by any accompanying increase in claims or payouts.”[7]

Recent press reports also describe insurers’ massive profits. For instance, the Triangle Business Journal reported in June 2006 that North Carolina’s largest malpractice insurer “saw profits climb 224 percent in fiscal 2005— with top executives granted hefty bonuses.”[8]  A December 2006 article in the Pensacola News Journal reported that “[a] report last week for the [Florida] Office of Insurance Regulation said Florida’s 15 largest medical malpractice insurers had 2005 profits of $803 million.[9]

These reports of massive profits dispel the myth propagated by the American Medical Association that North Carolina and Florida are “crisis” states. In the face of record profits amounting to hundreds of millions of dollars, such allegations are simply hollow. In fact, Americans for Insurance Reform, also reported that newly released data show 2006 commercial insurance industry profits set record highs for the third straight year.[10]

Medical malpractice insurance is not the only insurance to realize massive profits despite the industry’s claim of losses incurred through litigation. Hurricane Katrina with losses of $40.6 billion caused twice the amount of loss as the previous most expensive natural disaster on record, 1992's Hurricane Andrew. Hurricanes Wilma and Rita, also in 2005, were the third and seventh most expensive hurricanes in history respectively, adding a further $15 billion in loss tallies for the year.[11] Yet, remarkably, even after accounting for losses from the three storms, property-casualty insurers made a record profit of $44.2 billion in 2005, a 12 percent increase over the previous year and more than double the profit of five years earlier.[12] The industry also boosted its surplus by more than seven percent to nearly $427 billion.[13]  In 2006, the property casualty industry’s profit reached yet another record high, rising by an astonishing 44 percent, to $63.7 billion.  In addition, the industry surplus rose another $60 billion to $487 billion.

If we are not safer in our hospitals, are not saving money on our medical costs, and if our health care is not getting better, then why aren’t we speaking up and demanding answers from those who claimed diminishing our civil justice system would improve the medical climate?

To add insult to injury, our Mississippi Supreme Court has almost unanimously, across the board, reversed just verdicts coming out of lower courts in our state which involve medical errors. They continue to find ways to reverse and render injustice to medical mistake victims.  It’s not fair, it’s not right, and it’s not just.

The changes in the tort laws coupled with the climate created by our highest court in the state, are having a chilling effect on consumers and victims’ abilities to prosecute their just claims. Unfortunately, that’s the truth and, unfortunately, it’s not fair.

[1]Kohn, Linda T., Corrigan, Janet, M., and Donaldson, Molla S. To Err Is Human: Building a Safer Health System. Washington D.C.: National Academy of Sciences, 2000.

[2]Committee of Identifying and Preventing Medication Errors, Board on Health Care Services Preventing Medication Errors.  Washington, D.C.: national Academy of Sciences, 2006. p.5.  The IOM found that there are at least 1.5 million preventable errors, adding $3.5 billion in costs to the health care system. Id.

[3]Kohn, Linda T., Corrigan, Janet, M., and Donaldson, Molla S. To Err Is Human: Building a Safer Health System. Washington D.C.: National Academy of Sciences, 2000.

[4] National Highway Traffic Safely Administration 2005 data.

[5]Baker, Tom. The Medical Malpractice Myth. Chicago: University of Chicago Press, 2005 p. 29-30

[6]Eisenbrey, Ross. “Tort costs and the economy: Myths, exaggerations, and propaganda.” Economic Policy Institute, November 20, 2006; Baker, Tom. The Medical Malpractice Myth. Chicago: University of Chicago Press, 2005.p.9.

[7]Americas for Insurance Reform. “Commercial Insurance Rates Continue to Fall While insurer Profits Continue to Skyrocket to record Levels.” October 25, 2006.

[8]Wagner, Michael.  “Profits, executive pay up at malpractice insurer.”  Triangle Business Journal. June 16, 2006.

[9]St. John, Paige. “Malpractice Payouts Dropping.” Pensacola News Journal. December 7, 2006.

[10]With regard to medical malpractice liability insurers, the first and third quarters of 2006 each showed a decline of one percent.  Americans for Insurance Reform, “Commercial Insurance Rates Continue to Fall While insurer Profits Continue to Skyrocket to record levels.” October 25, 2006.

[11]Press Releases, Ins. Servs. Office, Inc., Hurricane Backgrounder: Claims and Property Loss Information

[12]Robert P Harwig, Inc. Info.Inst., Commentary on Full-Year 2005 Results 10,1, f (Apr.18,2006)

[13] “Insurers Saw Record Gains in Year of Catastrophic Loss; They say the profits are a fluke , but the industry has worked to shift risk to clients and the public,” Los Angeles Times, 4/5/06