After several lawsuits, I have to say that I do not like malpractice lawyers (”Line Drawn in War With Trial Lawyers”).

Still, even trial lawyers deserve medical care. We, the doctors, should continue our struggle against the scourge of malpractice through political and legal avenues, and not on the unethical basis of denying care to individuals we do not like.

So far, the AMA has failed in its efforts to get tort reform passed on a national level. An opportunity exists to use this election year in our favor.

Everyone who observes the political power struggle between George W. Bush and John F. Kerry knows that the president has made public statements against frivolous lawsuits. Senate Majority Leader Bill Frist, a heart surgeon, has tried and failed to pass S2207, the Pregnancy and Trauma Care Access Protection Act. It was defeated by a Democratic filibuster that effectively prevented a vote on this bill.

The Senate may be divided, but physicians should not be; never before has the line been so clearly drawn. On our side we have President Bush, the House majority leader, Sen. Frist, and all other business-oriented organizations such as drug and medical device companies and, of course, hospitals. On the other side we have the candidate for vice president, a malpractice lawyer who got rich at the expense of doctors.

Instead of spinning our wheels, let’s organize ourselves as a voting bloc. The AMA and other national and local organizations must take a political stand. Doctors can also influence patients by explaining that tort reform will actually improve access to medical care. If we do this, we may succeed in unseating some of the politicians who now vote against our interests. We may even prevent a malpractice lawyer from becoming the next vice president.

Federal investigators are targeting physicians who help Internet sites sell drugs to buyers without legitimate prescriptions.

“The Internet has brought drug dealers from the back alleys directly into every American home wired for e-mail and the World Wide Web,” Karen Tandy, administrator of the Drug Enforcement Administration, recently testified before the Senate Governmental Affairs Permanent Subcommittee on Investigations.

Such Web sites are heavily advertised through spam e-mail and on the Web, selling as much as $50 million annually per site in some cases, the DEA estimates.

Web sites, such as Medexplorer.com and LegalMedsOnline.com, that sell common prescription brands, did not respond to requests for an interview
Physicians associated with such Web sites typically have a business relationship with a pharmacy and almost never have a valid doctor-patient relationship under accepted medical practices, Ms. Tandy said. “Acting together, the physician and pharmacist dispense controlled substances [to those] without a legitimate medical need, resulting in widespread self-medication over the Internet.

“This essentially turns them into Internet-based drug lords,” she added.

Often the physician will ask the patient only three or four questions before prescribing the drug, Michael Schaff, a lawyer specializing in health care and corporate law in Woodbridge, N.J., said in an interview. To Mr. Schaff, it’s illogical how a physician could make a diagnosis without seeing the patient. “It’s not exactly the right thing do under the Hippocratic oath.”
To date, Justice Department investigations have discovered 14 deaths or overdoses and 15 people who have entered addiction rehabilitation or sustained injuries from drugs obtained illegally over the Internet, Ms. Tandy said.

The Government Accountability Office, in its analysis of drugs from 68 Web sites around the world, found that some Internet pharmacies pose safety risks for consumers and have unreliable business practices. While some in the United States and Canada required the patient to provide a doctor’s prescription, other sites provided prescriptions based on their own medical questionnaire or had no prescription requirement.

Doctors not involved in Internet pharmacies face another threat: They have no way to know how many Web sites a patient might be using to obtain drugs, said James Saxton, chair of the healthcare liability and litigation practice group of the American Health Lawyers Association. From a medical liability perspective, “this is a disaster waiting to happen,” he said.

More than 90 active investigations involving the diversion of pharmaceutical controlled substances over the Internet are underway, covering 537 Web sites, Ms. Tandy said. In the current fiscal year, the DEA has shut down 25 Internet pharmacy organizations and seized $3.3 million and 3.2 million dosage units. “Eleven million dollars is pending forfeiture,” she said.

Americans can take pride that we have the best health care in the world–committed doctors and nurses, state-of-the-art medical devices, and life-saving prescription drugs. Despite our successes, there are still too many gaps in quality, too many uninsured, too many errors, too many lawsuits, and too much red tape.
Under the leadership of President George W. Bush, we have made the most significant improvements to Medicare in two generations, guaranteeing prescription drug coverage to more than 40 million seniors and individuals with disabilities. We have given all Americans the opportunity to have greater control over their own health care choices and hard-earned dollars with tax-free Health Savings Accounts (HSAs). We have strengthened America’s safety net by expanding neighborhood community health centers to serve an additional 3 million poor and underserved uninsured patients. We have made an historic $15 billion commitment to fighting global HIV/AIDS. And we have completed the doubling of the research budget of the National Institutes of Health.

Still, there is more to be done. President Bush has a bold vision to build on these accomplishments with 4 more years, including: helping small businesses band together through association health plans to purchase more affordable health coverage; providing refundable tax credits to low-income Americans to help them purchase affordable health coverage; building on HSAs to give all Americans more ownership and control over their health care; continuing to expand the capacity of community health centers in the most needy areas of our nation to treat millions more underserved patients; providing all Americans access to individually owned, privacy-protected electronic health records; and limiting frivolous medical malpractice lawsuits which drive up health care costs, drive good doctors out of practice, and hurt patients.
These proposals will go a long way toward transforming our disparate health care sectors into a system that is more patient-centered, consumer-driven, and provider-friendly. President Bush clearly believes that the doctor-patient relationship must always be the touchstone of our health care system. Unfortunately, the same cannot be said of the Democratic presidential nominee. Many of Sen. John Kerry’s positions are at odds with the priorities of the medical community and the patients they serve. They are also an expensive prescription for bigger government and higher taxes.

Perhaps the best example is Sen. Kerry’s strong and repeated opposition to medical liability reform. Skyrocketing medical liability costs and frivolous lawsuits infect our health care system. They force doctors to practice defensive medicine, which drives up the cost of health care. They force doctors to leave hospitals, leave their states, even leave the practice of medicine altogether. And, above all, they hurt patients’ access to the care they need and deserve.

Three times in the past 2 years alone. Senate Democrats have blocked our attempts to pass medical liability reform legislation modeled on the successful laws on the books for decades in California. Sen. Kerry has made clear that he opposes these proven measures. By naming Sen. John Edwards as the Democratic vice presidential candidate, Sen. Kerry has even gone even further: He has put a trial lawyer on his ticket.

Instead of offering proposals to slow rising costs, Sen. Kerry would shift billions in health care costs to American taxpayers. Under his trillion-dollar plan, the federal government would pay for the vast majority of health coverage claims over $50,000. While I’m concerned about the burden this would place on taxpayers. I’m even more concerned about what it may mean in terms of government control of health care decisions. If the government is paying claims for intensive care, coronary artery bypass graft surgery, or a course of cancer treatment, it would inevitably get involved in health care decisions that should instead be made by doctors and patients.

Sen. Kerry also opposed the landmark Medicare Modernization Act (MMA) that already is providing more affordable prescription drugs to seniors. Signed into law by President Bush last year, the MMA will provide millions of seniors with comprehensive prescription drug coverage with no gaps, no premiums, no deductibles, and copayments of no more than $5. In addition, the law guarantees that every senior entering Medicare will have access to a physical examination (something Medicare has never covered) and other important preventive screenings for heart disease and diabetes.

At the same time, the Medicare law included a top priority for doctors across America. It reversed a scheduled 4.5% cut in physician reimbursement and replaced it with a 1.5% increase in payments for 2 years. Where does Sen. Kerry stand on protecting doctors and the Medicare patients they treat? In his own words, he “led the charge” to block the Medicare bill on the Senate floor and has said he would scrap it and start all over if he became president.

SPOKANE, WASH. — In this litigious era, it’s important for physicians to remember that not every medical complication constitutes a breach of duty, Dr. Abel Torres said at the annual Pacific Northwest Dermatology Conference.

Unwanted results are inevitable in any busy practice, and there are a number of steps physicians can take to prevent medical complications from turning into legal ones, said Dr. Torres, a lawyer and head of the division of dermatology at Loma Linda (Calif.) University.

He offered the mnemonic “COMPLICATIONS” to help physicians remember what to do when things go wrong.
* Candor is the best policy, and the physician should also acknowledge the patient’s complaint. “There’s nothing that makes people angrier than when you ignore them,” Dr. Torres said. “Does that mean you have to show remorse? No, it just means that you have to sympathize, which means you say, ‘Look, I understand that you’re upset about this. Let’s work it out.’”

* Opinions may be based on premature conclusions, so stick to the facts.

* Mitigate damages, making sure that the patient’s medical needs are met. This lessens the physician’s legal risk and has the added benefit of helping the patient.

* Positive steps are far better than negative ones.

* Liability should not be accepted, although Dr. Torres encouraged physicians to accept responsibility for taking care of complications.

* Investigate the facts. Don’t assume that you have the same perception as your staff and the patient.
* Clarify differing perceptions so that everyone’s on the same page. And don’t criticize or point fingers at other medical personnel, which only invites that person to point right back at you.

* Accessibility is important. Make sure the patient can get through to you or at least to someone on your staff to discuss the situation. “These are the patients you don’t want to talk to because they’re moaning, they’re whining, they’re complaining,” Dr. Torres acknowledged. “But they’re also patients who, if you’re not accessible, [will] seek comfort from some-body else. And who’s going to give them comfort? Lawyers.”

* Truth can’t be overemphasized, and trust will come from your honesty. Even a tiny lie can backfire, he said at the conference, sponsored by the Washington State Dermatology Association.

* Inform your malpractice carrier, despite fears that your premiums may rise. They may well have dealt with similar situations in the past and can head off a lawsuit, which is what really makes premiums go up. Discuss the possibility of writing off the patient’s fees, a controversial topic with good arguments on both sides. Dr. Torres suggested probing the patient for the reason he or she is asking for a refund. “If what they’re saying is, ‘I paid for a product, and I didn’t get what I paid for,’ … that might be a reasonable reason to give them their money back,” he said. “If what they’re saying is, ‘Make me feel better by giving me money,’ that won’t stop when you give the money back.” If you do decide to offer a refund, do so in conjunction with your attorney, who may draw up a waiver for the patient to sign preventing further legal action.

* Organize a meeting with the patient to discuss the risks, benefits, and alternatives of various approaches to solving the problem. At least one other person aside from the physician should be present, as a witness if nothing else, he said.

* Note and document the event, but never alter the records in any way–not even with a comma or some minor correction that may seem entirely innocuous to you. “If you alter a record, the whole record goes out the window,” Dr. Torres said.

* Save the evidence. Never release the original records. Preserve all the equipment used during the procedure. If there’s a defect of some kind, the manufacturer may well have some product liabilit.

“The Bush administration has been going to court to block lawsuits by consumers who say they have been injured by prescription drugs and medical devices.” (New York Times 7/25/04). This is an interesting and theoretically justifiable principle. It is founded on the belief that if the Food and Drug Administration (FDA) has sanctioned a product that has met governmental safety standards, to allow lawsuits would mean that federal safety standards are set (Bush administration quote) “insufficiently high and this belief would undermine public health.”
This thought-provoking concept could be extended in many directions. Such a principle would mean that determinations of harm would be taken from lay panels of jurors and judges. This is something I favor. I also favor removing malpractice from the tort system and making it an arbitration process through a specialized commission system in which independent experts, with the help of lay panelists, would independently review cases. This would allow more suits to be filed and more cases to be reviewed, with, hopefully, more appropriate fines, also removing 1/3 of the fee that goes to the lawyer. However, that’s a separate, albeit related, issue. This principle could also be extended to protect tobacco companies from lawsuits once nicotine is regulated by the FDA. It could expand into health related fields to mean that once the government has declared a site as not-toxic then citizens could not sue for damages. In short, the government knows best and once it has taken a position it cannot be challenged.
There are certain tenets that we must agree on before we can assume that drugs and devices are safe simply because the FDA says so. How can we assume that the FDA is fair, honest, and diligent? We have increasing data to show that the FDA has become politicized. Abortefacients recently became the first type of drug where the FDA overruled its own expert panel. With that obvious political statement, how can we be certain that future judgments won’t be tainted by industry ties, or political connections? The FDA has in the past few years allowed advertising of prescription drugs, for the first time empowering patients to choose their medications. This creates a market force that is difficult to resist and clearly represents a tilt towards industry.

It is not uncommon for a drug to be approved by the FDA and then discovered to cause an adverse effect not found in the pre-approval testing process. Effects that occur only once in a thousand cases say, will not be found until tens of thousands of people use the drug. I would argue that a company should not have responsibility for these uncommon side effects so long as it has scrupulously kept up its post-marketing surveillance and reported every adverse event to the FDA in a timely manner. The companies must be trustworthy. This requires full disclosure. During the spring and summer of 2004, drug companies have been successfully sued for failing to publish data or even submit them to the FDA when drugs have proven to be ineffective. Sometimes these negative studies have occurred in studies of disorders close to the approved indications. Specifically, I’m referring to antidepressants which work in adults but possibly not in children. If no drug is approved for childhood depression (or some other disorder) but is approved for the adult condition, then it makes sense for doctors to use the adult preparation in children, especially when no drug has been approved for this problem. This is done all the time, and for some drugs the “off label” uses outstrip the approved indication. But when a study finds no efficacy and the result is then buried, while doctors, with the knowledge of the companies, continue using the drug for this indication, because they don’t know it doesn’t work, then a moral line has been crossed. Equally disturbing is the fact that these lawsuits were instituted by New York State and not the federal government. The FDA did not seem to manifest any interest in the problem, perhaps a sign of bureaucratic inertia, lack of funding to do an adequate job, or political ideology (or worse).

The heart of the matter, as I see it, is responsibility. Allowing companies to hide behind an FDA approval fairly begs companies, many of which have been successfully sued in the past year for malfeasance of various types, to be less thorough and less safe. Why would we trust a company that hides data showing their drug to be useless while continuing to suggest the opposite? How can it be trusted to collect and publish data that reveals adverse effects unless it is required to, and that this requirement carries stringent penalties in case of default; and that the monitoring agency is reliable and honorable?

I do not see why pharmaceutical companies should be treated differently than car manufacturers. If the drug or device is found to cause harm once it’s approved, that problem must be monitored and reported to the FDA (as is currently the case). When this effort is not diligent the company should be sanctioned by the FDA. When the FDA fails to do the job properly it seems that the only recourse a consumer would have is a lawsuit. To deny this possibility will not only reduce the public safety but undermine our confidence in the FDA approval process, the very principle the federal government states it is trying to strengthen.

Johnnie L. Cochran Jr., the man who defended the poor and anonymous as well as rich and famous on his way to becoming the most famous lawyer in America, has died. He was 67.

Cochran died of an inoperable brain tumor at his home in the elegant Los Feliz section of Los Angeles. His condition had been diagnosed more than a year ago.

There had been numerous rumors concerning Cochran’s health for more than a year. However, to preserve the privacy that he always valued, his family and professional associates kept his status a secret.

The L.A. Times reported in a September 2004 interview with Cochran that he had been seeing famed Black neurosurgeon Keith Black at Cedars-Sinai Medical Center.

Much of America identified Cochran with the O. J. Simpson case, which was dubbed “The Trial of the Century.” But he had built a career out of defending numerous individuals who had been victimized by police and corporate giants before taking on the trial that mesmerized and polarized the nation in the mid-1990s.

The Simpson case involved the sports legend accused of killing his wife Nicole and her friend Ron Goldman.

It pre-empted soap operas and was televised daily to the nation. It made Cochran, head of “The Dream Team,” a household name around the world. He was both praised for his intelligence and charisma and vilified for allegedly introducing race into the murder case’s equation.

“We didn’t introduce any race card,” he said immediately following the case. “And I take great umbrage at that because I think it trivializes our whole situation. They have the deck! They own the deck! They made the deck! And then they accuse us of playing the race card which is preposterous. What happens is they call Mark Fuhrman (the LAPD detective called to the Simpson home following the murder. Fuhrman was taped making racist remarks about Blacks and Latinos). They know about him. I’d commit malpractice were I not to pursue that. And, of course, the tapes were as graphic in their own particular way as the Rodney King video was.”

His statement to jurors in that case”if it doesn’t fit, you must acquit”–became a catch phrase still parodied.

Movies and television programs came up with characters to mimic Cochran’s persona from the Simpson case.

He even hosted his own show on Court TV following the case.

Shortly after the trial, he reflected on its significance for JET:

“I think the trial will be remembered for a number of things. One of the things that the Simpson trial has pointed out is how African-Americans and Caucasians view things differently in our experiences. Of course, some of us knew this already. But the case graphically demonstrated that to the rest of the nation, especially with regard to police/community relations and how we view the police, how we view evidence and how we view justice.”

During and after that celebrated trial, Cochran and his family received numerous death threats. His daughter Tiffany, now a news anchor in Atlanta, received threats while working at a station in a smaller market.

“That was really the low point,” he recalled. “My daughter got death threats that essentially said, ‘If your papa John wins this case, we’re going to kill you.’ That really hurt me.”

So incensed were some that his address and directions to his home appeared on the Internet. “During closing arguments, we got death threats faxed into the courtroom. That’s the level of rage out there.”

One of his early high-profile cases was in 1966 when he represented the widow of a Black motorist killed during a police stop. In that case and numerous others that followed, Cochran won historic settlements and was credited with helping change some of the procedures of the Los Angeles Police Department (see page 14).

He took on the case of Haitian immigrant Abner Louima in 1997. Louima was tortured and reportedly sodomized by White officers in New York in a police station bathroom. That case settled for $8.75 million (see page 16).

In his largest financial case, Cochran, in 2003, helped 18,000 clients in Alabama get $700 million from major chemical companies that reportedly polluted the area. It was the largest judgment of its kind.

Other major judgments Cochran helped clients get included $15 million in a wrongful death suit, $4.4 million in a police abuse case in Nashville and a whopping $18 million against the City of Chicago.

Cochran was one of the most sought after lawyers in the United States. He expanded his legal empire east and opened offices in New York, Illinois, Tennessee, Georgia, Florida, Alabama and Washington, D.C.

Some of his detractors saw him as a promoter concerned with nothing more than money and celebrity. Cochran shook his head vigorously and grimaced when JET asked him about that accusation.

HFMA extends its condolences to 2004-05 HFMA National Chairman Joyce Zimowski on the recent loss of her husband, Edward Fox. Fox passed away May 10.

Fox was a partner with Harris Beach, LLP, in Pittsford, N.Y., where he excelled as a trial lawyer handling medical malpractice cases and property valuation disputes. He was recognized for his skills as a trial lawyer when admitted as an associate of the American Board of Trial Advocates. In addition to his legal activities, Fox volunteered his time and talents for charitable causes and served on various community not-for-profit boards of directors.

Fox was predeceased by his parents, Harry and Elizabeth Fox. He is survived by Zimowski and children, Katherine, Michael, and Joseph Fox-Boyd, as well as their mother, Marcia J. Boyd; his brother, Stephen Fox (and wife Carol); his nieces, Jennifer, Elizabeth, Julie, Kim, and nine great nieces and nephews.

Contributions in his memory may be made to Unity Health Foundation, 1555 Long Pond Rd., Rochester, NY 14626 or to Rochester General Hospital Foundation, 1445 Portland Ave., Suite G04, Rochester, NY 14621.

Then don’t do that, is the punch line reply.

For medical malpractice and personal injury lawyer Cynthia Hennessey there is no kidding when it comes to keeping one’s physical needs and legal rights healthy. Combining her skills as a registered nurse and as an attorney has offered Hennessey a perspective that she would like to see professionals in both fields have.

Hennessey is a St. Louis native who grew up in a family both dedicated to the nursing profession and well represented in the medical community. Yet, there was something beyond the hospital environment that prompted her to go one step further in trying to help others have their physical, emotional and financial needs met.

I’m from a whole line of nurses; sisters, aunts, mother, everyone is nurses in my entire family. I went to nursing school right out of high school and before I was 21, I was a registered nurse. I was doing nursing at Cardinal Glennon [Hospital], in their intensive care unit, and felt so young and like there were more mountains to climb, she said.

Hennessey recalled that while working full time as a nurse she developed an interest in law and desired making justice apply to her already-established medical skills. I worked at Barnes Jewish Hospital while going through law school, she said in relation to this connection of disciplines, without even realizing what an awesome combination the two degrees would be. Hennessey completed her law degree at Saint Louis University Law School in 1991.

Hennessey said she was stricken by the harshness of medical error while working at a St. Louis hospital - which she said would be better not to specifically identify - when she saw other nurses and doctors being overworked and witnessed firsthand medical errors taking place on an almost daily basis - errors for which she knew there needed to be accountability.

There was a situation that came through the intensive care unit, and there was a, just to put it bluntly, a gross negligence act that was done by a doctor right before my eyes on the night shift. This family lost a 4-year-old child as a result. [The physician] tried to rush through something because she had something else to get to. That just kind of left a sour taste in my mouth. So I decided to help people from a different standpoint, Hennessey said.

Hennessey said that becoming a medical malpractice and personal injury lawyer made her determined to only accept cases that she feels are not based on the client hoping to make a cash windfall.

In my office, we rate [potential clients] like in school with A, B, C, D or F grades. The D or F clients are ones who think that their accident is a winning lottery ticket or all they are concerned about is, ‘Where’s my money?’ I don’t want clients that want that. We escort them out, she said.

My A and B clients are the types that say, ‘We would never get an attorney. We know that this was an accident. We don’t want to hurt this person.’ For most they would never have gotten an attorney except something happened with an insurance company where they knew they were not getting a fair shake, Hennessey said.

I just settled a very sad case. A gentleman was taking a walk by a golf course, and he was hit by a line drive right in the eye and lost his eye. Well, the thing is, and this is what made him a nice client, and this is a high-dollar case, but he said, ‘This man feels so bad about what he did I don’t want to make it worse for him.’ That for me is an A client. To have compassion for the defendant. He did it on accident, and although [the victim will require attention for this condition] for the rest of his life, he did not want to hurt the defendant. I was heart-struck that he had compassion for the man who did this. What he didn’t have compassion for was the man’s insurance company playing hardball with him. That is the A client you love to represent, she said.

Hennessey lamented that medicine in general has gone through drastic changes in recent years which she admitted has hurt both that profession and the quality of care given to patients. In turn, it has placed added stress on legal professionals.

I put a lot of the blame on insurance companies, she said. Doctors have gotten pinched by insurance companies. Hospitals have, too. There is more pressure, and as a result, the quality is not as good. My service would not be as good if I had 1,000 clients that all had severe injuries. The same thing is true in medicine. I get lots and lots of calls on medical negligence cases, and unless it is really egregious circumstances, there is not a lot we can do for them.

Hennessey said that in her personal injury and personal compensation work, having a medical background has helped her beyond just being able to read and comprehend charts. You also need to know what is there, what isn’t there, what’s relevant, what’s missing. When you represent injured people, it requires you to put on different hats - my nursing hat, my social work hat, my dealing with them from a psychological standpoint and dealing with the whole picture of a client and their family. That is a lot how nursing is. You don’t just go into a room and just treat them as a disease or a condition. It is a whole picture, and that’s how I run my practice now.

A company is sued for an allegedly defective product, and the plaintiff, as part of a routine discovery request, asks for any or all documents relevant to her case.

The plaintiff’s broad request could require the company’s lawyers to sift through millions of documents on laptops, backup tapes and servers to make sure no privileged data is released.

Scenarios like that are creating headaches - and huge legal bills - for corporations and other defendants, says the newly elected president of a national defense lawyers group, which is pushing for a rewrite of electronic discovery rules.

In the last decade, with the advent of everybody having e-mail and everybody having computers, the amount of data that’s sitting in our clients’ offices on computers - and frankly, in law firms, small businesses and government offices - is enormous, said Columbia, S.C., attorney David E. Dukes.

The managing partner of Nelson Mullins Riley & Scarborough, Dukes was recently elected to a one-year term as president of the Chicago- based Defense Research Institute, a 22,000-member association composed of lawyers, corporations and insurance companies involved in civil litigation defense.

Dukes said he would advocate for e-discovery reform during his term in office.

At a January 2005 public hearing in San Francisco on proposed rules amendments, Dukes described a real-world example.

In a recent case, one of my clients searched between 400 [million] and 600 million electronic documents, he said. That search led to 8 million electronic documents that were deemed to be potentially responsive.

[F]rankly, my law firm is well compensated for doing electronic discovery, Dukes testified. But I have flown here across the country at my firm’s expense because electronic discovery is broke as we know it, and litigants are entitled to more predictability and more consistency in dealing with these electronic discovery issues.

The goal is to balance discoverability against burden and expense, Dukes said.

The existing rules were fine for that on paper discovery, but they didn’t anticipate a lot of these electronic issues, he said.

Now, procedure rules on e-discovery are often outdated, Dukes said, forcing judges to decide the issue on a case-by-case basis, leading to inconsistencies and a patchwork of local rules.

There’s been a lot of confusion about what you have to produce and in what format you have to produce it, he said. If you’re a company that’s getting sued in multiple states, it’s absolutely costing a fortune to try and comply with that.

Dukes has served on DRI’s board of directors since 2002. He also served as chairman of the organization’s Drug and Device Law Committee from 1999-2001 and as South Carolina state chairman from 1993-1997.

DRI is one of many bar groups seeking revisions in electronic discovery rules at the federal level. A recently released survey of corporate counsel found that e-discovery topped the list of new litigation-related burdens for the very largest companies.

But change appears to be on the horizon. In September, the Judicial Conference of the United States, the policy-making arm of the courts, approved a package of proposed federal rule amendments that addressed electronic discovery.

Those must also be approved by the U.S. Supreme Court. The amendments could become effective on Dec. 1, 2006, if Congress does not disapprove them.

According to a report submitted to the Judicial Conference, the current discovery rules, last amended in 1970, provide inadequate guidance to litigants, judges, and lawyers in determining discovery rights and obligations in particular cases.

Without national rules adequate to address the issues raised by electronic discovery, a patchwork of rules and requirements is likely to develop, the report stated. While such inconsistencies are particularly confusing and debilitating to large public and private organizations, the uncertainty, expense, delays, and burdens of such discovery also affect small organizations and even individual litigants.

Under the proposal ultimately adopted by the conference, Rule 16 would require parties to discuss electronic discovery issues during pretrial conferences.

The idea is to get them on the same page at the beginning, Dukes said.

A proposed amendment to Rule 26 would divide electronic information into two categories: that which is reasonably accessible - such as data on the office hard drive or personal laptop - and items that are not reasonably accessible.

Under the amendment, a party need not produce electronically stored information that is not reasonably accessible because of undue burden or cost, the report to the Judicial Conference stated. While the features that may make it burdensome or costly to access electronically stored information vary from system to system and with the progress of electronic storage systems over time, examples under current technology include deleted information, information kept on some backup-tape systems for disaster recovery purposes, and legacy data remaining from systems no longer in use.

Mississippi, renowned for its majestic antebellum homes, flowering magnolias and fried catfish, also is known as the “Lawsuit Capital of the World”–the state where businesses fear to tread and where many doctors can’t buy malpractice insurance. Huge jury verdicts are common, as are massive cases involving hundreds of plaintiffs suing drug companies and tobacco manufacturers.

“There is a great need for civil-justice reform in this state, period,” says David Allen, chief executive of Mississippi Blood Services and head of Mississippians for Economic Progress. “There is a crisis in Mississippi with our civil-justice system as a whole.”

A Harris Interactive survey in January of corporate lawyers across the country ranked Mississippi’s civil-justice system last among the states. The average Mississippian pays $264 a year to fund litigation there.

A unique aspect of the Mississippi system, and the biggest thorn in the side of many business leaders, is a measure called joinder, officially known as Rule 20. Under this rule, which has been upheld by the state Supreme Court, cases with similar circumstances, including those from out of state, can be pooled. As a result, trial lawyers file cases with as many as a thousand plaintiffs, many of whom reside outside Mississippi.

Litigators and judges who support the rule say it is an efficient way of quickly finding verdicts or settlements in cases that otherwise would clog the court system. “It’s good because more cases get resolved quickly,” says Shane Langston, head of the Mississippi Trial Lawyers Association. “Plaintiffs don’t have to wait for case number 9,999.”

But opponents of joinder argue that the rule is abused. Doctors and small businessmen are pulled into a case simply to ensure that it is litigated in the state, which has no cap on noneconomic damages. In turn, insurance is excessively high because actuaries can’t set rates, say critics of the system.

“I’m uninsurable because of where I practice, not what I practice,” says Robert Lewis, an internist who until this year had been sued once, a case he won. In 2002, he has been pulled into four cases. Colleague David McGraw, a general-practitioner, had gone 23 years without a lawsuit filed against him. This year, he was named in three. “It’s constantly in the back of your mind: `How can I keep from getting sued?’” says McGraw.

Medical Assurance Co. of Mississippi, the only remaining malpractice carrier in the state, has been forced to raise rates a minimum of 10 percent for all doctors, with surgeons and OB/GYNS seeing 20 to 30 percent increases. Last year, the company received 370 requests for insurance, the most in more than a decade. Through March, it had received 450 requests. “These are the same doctors that have been here for 20 years,” says Chief Executive Mike Houpt. “We’ve had to be much more selective because of the litigious environment we’re operating in right now.”

At Field Memorial Community Hospital, the only full-fledged hospital servicing Wilkinson and Amite counties, three doctors will be without malpractice insurance at the end of July. The policy of an additional doctor runs out Sept. 1.

“We’re still out on a limb,” says Ricardo Nimo, an internist at Field Memorial. “We still have no coverage at this point. I never thought I’d find myself in this situation.”

The situation has become so dire that administrators of the state-owned hospital are on the verge of making drastic changes to keep the doctors there and the facility open. Their plan is to take advantage of a Mississippi law that caps liability for state employees at $500,000–that is, to restructure the doctors’ contracts to make them employees of the state, rather than independent contractors. “To say that we don’t have a problem in Mississippi, I think the evidence would beg to differ with that opinion,” says Brock Slabach, Field Memorial’s administrator.

Business leaders also are advocating reform. The U.S. Chamber of Commerce has cautioned its members against doing business in the state, citing the lack of tort-reform laws, and has been campaigning on behalf of pro-reform candidates for the state Supreme Court.

Small businesses have suffered the most from the tort system, say critics. The most publicized case is of the Bankston Drug Store, the only pharmacy in the town of Fayette. Both Hilda Bankston, who owned the store until 1999, and Traci Swilley, the owner now, have been named in dozens of lawsuits against drug companies for the sole purpose of bringing the cases into Jefferson County, which has become notorious because of large verdicts and numerous settlements. Neither Bankston nor Swilley has paid anything in verdicts or settlements, and they never have been held liable by the court. But they have faced the stress of hiring lawyers and have found it increasingly difficult to find affordable insurance.

“When they’re getting dragged into court time and time and time again, who suffers?” asks Ron Aldridge, head of the Mississippi chapter of the National Federation of Independent Businesses. “Well there’s no doubt that little, small business suffers tremendously from the cost in time and stress.”