Show Me Tort Reform: the Missouri Experience

In 2003, medicine in Missouri was on life support. Physicians were leaving in droves to practice in states with affordable malpractice insurance and a less predatory tort bar. Despite seven medical schools in Missouri and Kansas City, Kansas, few residents and fellows could afford to set up a practice in Missouri or to join state medical groups. Huge areas of the Show-Me State were left without neurosurgical or high-risk obstetrics coverage. This article reviews the enactment and effect of tort reform in Missouri and our related thoughts on health care reform at the national level.

KANSAS VERSUS MISSOURI
Many Missouri physicians headed west to Kansas in 2003. The contrast between the states is worth noting. Kansas politics are dominated by commercial and agricultural interests, and legislation is generally business friendly. The Kansas Trial Lawyers Association, the executive director/lobbyist of which from 1977 to 1986 was current Health and Human Services Secretary Kathleen Sebelius, does not have nearly the power or influence of its Missouri counterpart. The Sunflower State has created a stabilization fund that provides reinsurance against large adverse judgments. Consequently, Kansas physicians had malpractice premiums as much as 30% to 50% lower than their colleagues in Missouri (Discover Vision Centers, unpublished data).

Missouri trial lawyers are one of the major forces in the state’s politics. They dominate the Democratic Party and, in areas, hold sway with the Republican Party as well. Their fundraising for politicians is legendary and prodigious. Inner-city juries in St. Louis and Kansas City are much more sympathetic to plaintiff ’s cases than out-of-state juries.¹1 The US Chamber of Commerce declared 2003 Missouri one of the most hostile states in which to conduct business.²

ACTION
In full crisis mode, Missouri physicians mobilized as never before for the 2004 state elections. Previously somewhat parsimonious with their time and money, physicians became major contributors to the campaigns of Republican gubernatorial candidate Matt Blunt and numerous candidates for the State Senate and House, all of whom included in their platforms the enactment of tort reform. Physicians handed out campaign materials in their offices, let their patients know how runaway junk lawsuits imperiled their care, and identified which candidates were pledged to tort reform. Doctors advertised the cause on radio and television and in newspapers. Ophthalmologists were especially engaged in the effort; our practice, Discover Vision Centers, donated more money than any other state physician group. The election handed Governor Blunt a victory and ushered in Senate and House majorities committed to changing the status quo.

In 2005, physicians’ political activism contributed to the passage of House Bill 393, a sweeping tort reform law. A $350,000 cap was set on non-economic damages, change of venue was abolished, and numerous other provisions had an immediate effect on Missouri’s malpractice rates.² The exodus of physicians slowed. Our practice’s malpractice premiums per Missouri ophthalmologist dropped from $22,718 in 2006 to $16,406 in 2009—a 28% reduction. (In 2009, however, the premiums for our Kansas-based ophthalmologists were only $8,937.) New physicians and new insurance carriers opened for business in Missouri. The number of malpractice lawsuits filed and judgments paid in the state plummeted to a 30-year low; the average payout is now about $50,000 below that of 2005.²

Not surprisingly, Missouri’s trial lawyers have mounted an effort to overturn tort reform by the judicial process, as executed successfully in Wisconsin.³ Their test case, carefully researched and lavishly financed, Klotz v St. Anthony’s, is presently before the Missouri Supreme Court.

IMPLICATIONS FOR NATIONAL REFORM
The unprecedented scope and speed of health care legislation at the national level is putatively driven by the costs and unavailability of medical care. The Manhattan Institute, a nonpartisan think tank, in addition to physicians and other thoughtful parties recognize that both the measurable cost of malpractice litigation and the much larger (but more difficult to compute) costs of defensive medicine are significant expenditures. Ultimately, the price of defensive medicine and unrestrained tort litigation will be paid by unsustainable inflationary monetary policies and confiscatory taxes on US citizens and businesses.⁴

We believe that the flagrant omission of tort reform in the health care bills before Congress at the time of this writing can be explained by the fact that the American Association of Justice (the refurbished name of the American Trial Lawyers Association) and wealthy individual trial lawyers are top political donors to the Democratic Party.⁵

Physicians should start raising opposition to health care bills that do not contain tort reform or that they find otherwise pernicious. The 2010 elections are important. Physicians should discuss the issues and candidates with their patients, who, in our experience, are mostly sympathetic and respect doctors’ judgment. Physicians can distribute information in their office. Those in states with a US Senate race should find the best candidate and assist his or her campaign. Our practice has made a major commitment to US Representative Roy Blunt in his bid for a Senate seat.

We suggest meeting with state and national candidates, educating them, and—if they agree with tort reform—supporting them early in their campaigns. Based on the Missouri experience, we believe that motivated medical professionals can help shape positive health care legislation and enact tort reform.

Jim Denning is the CEO of Discover Vision Centers in Kansas City, Missouri. Mr. Denning may be reached at (818) 350-4529; jdenning@discovervision.com.

John F. Doane, MD, is in private practice with Discover Vision Centers in Kansas City, Missouri, and he is a clinical assistant professor with the Department of Ophthalmology, Kansas University Medical Center, Kansas City, Kansas. Dr. Doane may be reached at (816) 478-1230; jdoane@discovervision.com.

John C. Hagan III, MD, is the editor of Missouri Medicine: the Medical Journal of the Missouri State Medical Association. He practices ophthalmology at Discover Vision Centers in Kansas City, Missouri. Dr. Hagan may be reached at (816) 478-1230; jhagan@bizkc.rr.com.

1. Fodeman JD. Tort-reform demonstrations projects—enough already. National Review Online. http://healthcare.nationalreview.com/post/?q=ODYwNWY5YWNlNmMzMzIzMzdm YTM2ZWU2NWE1MGMzNzY=. Published November 16, 2009. Accessed December 15, 2009.
2. Blunt M. How Missouri cut junk lawsuits. The Wall Street Journal. September 22, 2009:A23.
3. The White House butler [editorial]. The Wall Street Journal. November 19, 2009:A20.
4. Center for Legal Policy, Manhattan Institute for Policy Research. Health hazard: litigation increases medical costs, but lawyers block reform. Trial Lawyers Inc. http://www.triallawyersinc. com/updates/tli_update_healthcare_2009.html. Published October 2009. Accessed December 14, 2009.
5. The Center for Responsive Politics. Heavy hitters: top all-time donors, 1989-2010. OpenSecrets.org. http://www.opensecrets.org/orgs/list.php. Accessed December 14, 2009.