Why Dr. Kooyer had to move

This doctor wanted to help the poor in the Mississippi Delta. The malpractice climate drove him away.

By Dorothy L. Pennachio
Senior Editor

When the malpractice crisis became unbearable in Rolling Fork, MS, pediatrician Kurt W. Kooyer, 40, headed toward the frostier but less litigious climate of North Dakota, where premiums are low, claims are few, awards are capped, and people, he says, are just plain nicer.

His story moved President Bush to cite him as an example of why tort reform is urgently needed.

Kooyer and his wife, pediatrician Maria L. Weller, both members of the Christian Reformed Church, came out of residency idealistic and wanting nothing more than to do good.

Board certified in pediatrics and internal medicine, Kooyer arrived in the Mississippi Delta in July 1994 to work at the Cary Christian Center Medical Clinic. He received no salary at first, but the clinic paid his malpractice premium—then $4,000.

After one year, Kooyer and fellow physician Andrew George founded the Delta Care Rural Health Center. Many patients had no insurance, but the clinic was entitled to cost-based reimbursement from the government for its Medicaid and Medicare patients. Kooyer's salary grew to $70,000—about half of what he could earn elsewhere. By 2000, he'd received the National Perinatal Association's Individual Recognition Award, acknowledging his work in one of the most medically challenged areas in the country.

It didn't take long for the litigation to start

Before he'd been in practice two years, Kooyer was named in a wrongful death suit in which a patient died of a rapidly advancing infection.

"We fought the allegations for more than two years," Kooyer says. "I attended the plaintiffs' depositions and could hardly believe the lies and orchestrations." In view of the fact that Kooyer's malpractice carrier had gone into bankruptcy, his attorney told him he could not in good conscience let the case go to a jury trial. Kooyer reluctantly agreed to settle.

"It's not justice; it's extortion," he says. "Doctors who've done nothing wrong are settling suits. As a result, the National Practitioner Data Bank is losing its effectiveness as a policing tool. Instead, it's becoming a Who's Who of doctors in America."

It was a second lawsuit, this one involving Propulsid (cisapride), that convinced Kooyer and his wife to leave the state. By then, his malpractice premium had grown to $13,000.

"I was served by the sheriff on the day after Easter 2002," recalls Kooyer. "The complaint sought economic, noneconomic, and even punitive damages against me."

Propulsid has been shown to cause harm in patients with QT prolongation, according to the FDA. By the end of 1999, use of the drug had been associated with 341 cases of heart rhythm abnormalities, including 80 deaths. In July 2000, the manufacturer stopped marketing the drug.

In Kooyer's case, though, his patient hadn't suffered any negative consequences. "Actually, I didn't get hurt by Propulsid," plaintiff Hazel Norton told The [Jackson] Clarion-Ledger. Norton claimed she didn't know she was suing Kooyer.

"Hundreds of Mississippi doctors are being sued in mass tort drug cases now, and many times, the patients aren't even aware their doctors are named," says Kooyer. "Where's the shame? That kind of behavior's not ethical, but apparently it's legal in Mississippi." Due to Norton's objections, her attorney dismissed Kooyer from the case, but not before the doctor had made up his mind to go away from what he saw as an oppressive legal climate. Kooyer and his wife left Mississippi in August.

"Don't turn your red cross into a bull's eye"

When Kooyer was approached by 60 Minutes earlier this year, he was tempted to tell his story, but his attorney advised him against it. He said, according to Kooyer, "Don't turn your red cross into a bull's eye." The attorney told him he'd only make himself a bigger target for litigation.

"Having to fear personal harm for speaking out about an injustice—isn't that an old tradition in Mississippi?" comments Kooyer.

He began to speak to the media only after he'd secured tail coverage. He feared that the premium would be much higher if the insurance company had perceived that his risk had increased. As it was, the tail is costing upward of $24,000.

"I don't care to practice any longer in a state where so many people are willing to behave unethically just because it benefits them financially," says Kooyer. "When you have patients who sue even though there's nothing wrong with them and lawyers who sue doctors who they know have done nothing wrong, that's a departure from personal ethics. It's not so much a crisis of tort as it is a crisis of character."

One person who learned of Kooyer's situation was President Bush. In August he cited the doctor in a speech about tort reform during a visit to Mississippi.

"[Kooyer's] got a heart," said the president. "But because of frivolous lawsuits, because every time he turns the corner, somebody might sue him, and because of his rising liability insurance premiums, he's leaving your state. He doesn't want to leave your state, he loves Mississippi, he loves helping those who need help . . . but he's had it."*

As a result of Kooyer's departure from Mississippi, Sharkey and Issaquena counties, two of the most impoverished in the country, are left without a pediatrician, and the community hospital is left with a staff of only two physicians. Administrator Winfred Wilkinson told The Clarion-Ledger that the loss of Kooyer would put a severe strain on that staff.

"It's going to be hard to replace him, and whoever comes will face the same thing," he said. "It's the patients who suffer." Since Kooyer arrived eight years ago, the counties' infant mortality rate declined from an average of 10 deaths per 1,000 live births to 3.4.

North Dakota: personal integrity and self-reliance

A commendable mind-set prevails in North Dakota and other upper Midwestern states, says Kooyer.

"It's simple. People are raised to do the right thing. For the most part, they don't accuse people unjustly or take things that don't belong to them. There's an emphasis on personal integrity and self-reliance. People know the difference between right and wrong."

And North Dakota laws reflect that. There's little focus on medical malpractice. As of Nov. 1, 2002, the National Practitioner Data Bank had received only 277 medical malpractice reports for the state. Mississippi has almost five times as many.

"When I arrived and asked doctors about the affordability of malpractice insurance in this state, they just looked at me blankly," says Kooyer. "They were pretty sure they had coverage, but they didn't think about it much. What a difference!"

Today Kooyer works for MeritCare Health Systems, a large, not-for-profit corporation in Fargo. His salary has nearly doubled.

*See "Special Report: A presidential boost for tort reform," Sept. 9, 2002.

Mississippi burning?

Medical Assurance Company of Mississippi (MACM) sent a letter to its 2,500 insured physicians in September announcing that malpractice insurance premium rates were being raised by 45 percent starting January 2003.

"Our physicians need help," says Michael D. Houpt, the insurance company's CEO. "We have physicians retiring early, reducing the scope of their practice, or leaving the state. Scores of physicians are unable to obtain affordable insurance."

Houpt isn't optimistic.

"Trial lawyers own all three branches of government in Mississippi," he says, "and their concern for the 'little man' applies only if he has a cause of action. These are extremely frustrating times for everyone but the individuals making millions of dollars from our current tort system."

On October 7 the Mississippi Legislature approved changes to the state's civil justice system including caps on the amount of money a plaintiff can receive for pain and suffering. The changes, which take effect in January, are expected to stabilize the insurance industry, but it may take a minimum of two years, according to John Cook, head of the Mississippi State Medical Association.

Dorothy Pennachio. Why Dr. Kooyer had to move.

Medical Economics

2002;24:42.