February 21, 2003

Norris Proposes Medical Malpractice Reform

Urges Tort Reform as Step to Lower Health Care Costs 

NASHVILLE--Senator Mark Norris (R-Collierville) has introduced legislation to help contain the rising costs of health care due to dramatic premium increases in medical malpractice insurance that can result in states which allow excessive jury awards. 

            Senator Norris stated, "It is time for tort reform in Tennessee.  It is a critical, quality of life issue.  Access to and affordability of health care have been adversely affected by spiraling insurance premiums.  Tennesseans need coverage and care they can count on, and malpractice reform is where we need to start." 

Senator Norris was assigned to coordinate the Senate Republican Caucus Task Force on Health Care Reform last week.  The Task Force will promote comprehensive reform including medical malpractice as well as TennCare reform.  Senator Norris is the prime sponsor of legislation backed by the Tennessee Medical Association.  Senate Bill 605/House Bill 1441 would cap recoveries for noneconomic losses. 

"In order for physicians to maintain their practices and hospitals to remain open, we must find a way to balance two essential elements: providing a more reasonable degree of predictability in the unpredictable insurance industry, on the one hand; while protecting the rights of individuals to be compensated fairly if they are injured through malpractice, on the other hand," concluded Senator Norris. 

SB 605/HB 1441 seeks to impose certain requirements on malpractice actions, awards and procedures.  Part of Senator Norris's multi-pronged tort reform measure would remove the incentive for attorneys to roll the dice for clients by filing needless lawsuits or by holding up on making reasonable settlements for cases which have merit.  Currently TCA 29-26-120 allows attorneys 1/3 of an award or settlement.  Senator Norris's proposal would put in place a multi-tiered approach. The limitations would cap attorney's contingencies and allow up to 40% of the first $50,000 of damages recovered, 33 1/3% of the next $50,000 recovered, 25% of the next $500,000 recovered, and 15% of any amount on which the recovery exceeds $600,000.  Such limitations shall apply regardless of whether the recovery is by means of settlement, arbitration or judgment, and regardless of whether the person for whom the recovery is made is a responsible adult, infant or person of unsound mind. 

            SB 605 is available online at http://www.legislature.state.tn.us/bills/currentga/BILL/SB0605.pdf .

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Committees Moving Bills Along

While Filing Deadline Looms over Senate

This week on Nashville's Capitol Hill, the 103rd General Assembly has quietly slipped into second gear now that a sufficient number of bills have been filed, sorted through, assigned to standing committees, studied by committee officers and staff, and then queued up for committee calendars where full-fledged hearings can be held on the merits of the bills.  Committee officers and staff, as well as bill sponsors, are also ensuring that bills are in the correct committees and are properly positioned.

Meanwhile, Senate members have their second and final bill-filing deadline looming over them this weekend.  Senators must timely file their final general bills no later than the close of business on Monday, Feb. 24.  They can file no more than nine general bills total since the 9-bill limit took effect when the unlimited bill-filing period ended at the close of business on Thursday, Feb. 13.

                The General Assembly did not meet in session on Monday this week due to President's Day.  A normal full day of committee hearings fired up on Tuesday, which is usually reserved solely for committee meetings.  On Wednesday, the usual order of committee meetings followed in the morning and the early afternoon.  This week, instead of the Senate convening at 3 p.m. in the Senate Chamber, the Senators joined with their peers in the House chamber for a Joint Convention to elect the five members of the State Election Commission.  The Joint Republican Caucus had met early Tuesday morning to nominate two Republican members to the new State Election Commission. At Wednesday's Joint Convention, Wes Kliner of Hamilton County from the East Division and Jimmy Wallace of Jackson from the West Division were duly elected by acclamation.  A regular Senate session then followed.  Following the usual order of weekly events, members convened again on Thursday morning to wrap up the week's main meetings, primarily to introduce bills.

On Capitol Hill, bills are still being crafted, drafted, refined, tweaked, and, in some cases, withdrawn as members get legislation in a suitable form so that the measures can be properly introduced and undergo first and second readings prior to being assigned to an appropriate committee for consideration.  Also, under a bicameral legislature system, Senate members must also seek out a House sponsor to carry a companion bill through the House.  Likewise, this week House members have been scrambling to line up Senate sponsors for their bills because Senate sponsors become harder and harder to find with the nine-bill limit now in effect.

At this time of year, members rely heavily on the dedication of staff attorneys in the Legal Services Department who operate at a much higher tempo in order to churn out just the right language so sponsors can meet final filing deadline.

Amendments can come later, but bills must be timely filed.  Failure to meet that final cutoff almost always means that a bill will not have any chance for passage into law this year.  Only under extremely extraordinary circumstances can a general bill be introduced after the deadline, and then, only by going through a rigorous Delayed Bills process.

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Bills, Bills, Bills

All things considered:  Bills are still being filed for the new session, but the pace for the Senate has slowed now that the nine-bill limit is in effect.  As of 2:48 p.m. (CST) Thursday, February 20, the Senate has 1730 Senate bills filed, while the House has 1574 bills filed.  Senate Joint Resolutions now number 110; House Joint Resolutions 87; Senate Resolutions 11; and House Resolutions 28.  The Senate and House have used 9 days of the 90 regular session days allowed every two years under Article II, Section 23 of the Constitution for a regular session. The Senate and the House recessed and plan to convene in regular session on Monday, Feb. 20, at 5 p.m.

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Final Bill Filing Deadline Looms:  Members may file an unlimited number of bills up to a cut-off date which was Feb. 13, 2003, this year.  After the cut-off date, Senate members can only file nine general bills.  The limit does not affect local bills and most resolutions. The nine-bill limit cut-off date is the 10th legislative day by Senate Rule.  That cutoff is set for the close of business on Monday, Feb. 24, 2003.

 Senate Floor Actions

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Two bills on a regular calendar reached the full Senate floor on Wednesday.  Both bills were the product of the efforts of the Senate Judiciary Committee from the prior week.

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Senate Bill 55 received unanimous Senate approval Wednesday to codify into law the acts passed by the previous General Assembly.  As Senate Judiciary Chairman, Senator Curtis Person (R-Memphis) co-sponsored the bill.

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SB 3 by Senator David Fowler (R-Signal Mountain) also passed unanimously on Wednesday to delete from current law the requirement that Social Security Number information be part of a court filing to obtain a conservatorship.  Senator Fowler pioneered and successfully championed laws in Tennessee to protect as much as possible a person's Social Security Number to reduce the chances of identity theft.  This is one more step to thwart the efforts of those who seek to obtain the information from public records to use for illegal purposes.

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Senate Committee Actions

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The Senate Finance, Ways and Means Committee continued to hear tedious testimony regarding the financial troubles of the TennCare Program.

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The Senate Commerce, Labor and Agriculture Committee continued hearing extensive testimony from the state Comptroller on the fiscal issues facing the legislature during the current fiscal year that ends on June 30, 2003, and the fiscal year that follows.  Committee members did hear a few bills though this week. Among them:

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SB 39 passed out of the Senate Commerce Commerce to transfer the authority to regulate unsolicited faxes from the Department of Commerce and Insurance to the Tennessee Regulatory Agency.  Senator Randy McNally (R-Oak Ridge) co-sponsors the bill.  The bill's next stop is the Calendar Committee, chaired by Senator Rusty Crowe (R-Johnson City) who will set the bill for a full Senate floor session at an appropriate time.

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SB 15 by Senator McNally, the Senate Education Committee chairman, passed out of the Senate Commerce Committee to allow local education agency vocational-technical students to construct on campus and sell one modular building a year.  The change creates an exception to the Modular Building Act which currently prohibits end-product sales of items produced as a regular part of the students' educational training.

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Senate Judiciary Chairman Curtis Person set a full docket of bills to be heard this week by his committee.

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SB 30 by Senator Bill Clabough (R-Maryville) moved through the Senate Judiciary Committee to expand the crime of retaliation for a past action to include the making of threats against family members.  According to the bill summary, present law states that it is an offense of retaliation for past action to harm or threaten to harm a witness at an official proceeding, judge, district attorney general, assistant district attorney general, employee of the district attorney general, law enforcement officer, clerk, juror, or former juror.  This bill would add language to the present law, making it an offense of retaliation for past action to harm or threaten to harm a family member of any of these groups.

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SB 113 moved through the Senate Judiciary Committee to provide that voluntary intoxication is not a defense in a criminal case nor is it admissible in evidence for the purpose of negating culpable mental state.

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SB 36 by Senator McNally moved through the Senate Judiciary Committee to clarify that General Sessions judges may administer the oath of office for any elected or appointed official.

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SB 217 by Chairman Person passed out of his Senate Judiciary Committee to establish as a new aggravating factor whether a defendant committed a murder after having been enjoined by a court order from causing or attempting to cause bodily injury or assault against a victim.  Essentially, the bill does the same thing as SB 1426 from the 102nd General Assembly which passed the full Senate but failed to pass the House and thus did not become law.  SB 217 moved to the Senate Finance, Ways and Means Committee to be heard after the budget.

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The Senate Education Committee, chaired by Senator McNally, continued hearing reports on the state of education in Tennessee and delved into an Overview of Tennessee Lottery Scholarship Fund implementation and distribution schemes.  The committee did pass out one bill.

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SB 154 moved out of the Senate Education Committee to require student activity funds to be deposited in a state depository, a state-chartered credit union, or a federally-chartered credit union.

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The Senate General Welfare, Health and Human Services Committee passed out a consumer protection bill, SB 134, that would require tagging used bedding prior to its being sold in Tennessee.  Currently, used bedding is being shipped into Tennessee from Northern states which have strict laws on the resale of used bedding.  The anti-dumping law is patterned after an Arizona law which requires tagging used bedding so that it is readily identifiable as used merchandise rather than merely discounted goods for clearance sales. Federal law requires tagging of new bedding, but it does not require tagging of used bedding and is of no value when it comes to alerting buyers in advance that an item is not new.  The law would not stop the sale of used bedding and that is not the intent of the measure.  It merely lets consumers know that they are not purchasing new items.

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The Senate General Welfare Committee passed out SB 187 by Senator Crowe to exempt physical therapists and physical therapist assistants licensed in other jurisdictions from Tennessee licensing requirements if they are temporarily performing physical therapy with visiting athletic teams and similar entities, such as performing arts troupes and ballets.

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The Senate Environment, Conservation and Tourism Committee, chaired by Senator Jeff Miller (R-Cleveland), heard updates from experts on the Sustainable Forestry Initiative Program.  Participating speakers included a representative each from academia, an environmental group, the Department of Agriculture, and the timber industry.  Next week, the committee will revert back to public hearings on a proposed Uranium Enrichment Plant in Hartsville.

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The Senate Transportation Committee, chaired by Senator Mike Williams (R-Maynardville), passed out consumer-friendly SB 87 by Senator McNally to delete an obsolete requirement that copies of certificates of vehicle registration must be signed.  The Little-Known and Mostly Unknown Law:  Current law dates from the 1950's in a paper-based system in which the registrant of the vehicle signed a form which contained carbon paper with the registrant receiving a copy that contained the signature on a proper vehicle registration.  Today the forms are computer-based and county clerks do not use carbon paper.  The signed original remains with the registering clerk and a copy without a signature is given to the registrant.  Under the obsolete code, the registrant can be fined for failure to sign the copy placed in the vehicle.  Estimates are that 90% of the people are in violation of this obscure technicality in the law.  Some jurisdictions issue tickets, stacking these additional charges on top of traffic citations.  Senator McNally feels that the statute needs to move into the 21st century and that traffic offenders already have enough to worry about without being penalized additionally for missing the tiny print on the back of some registrations that notify registrants that the registration must be signed to be valid or they are in violation of state law.

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SB 169 by Senator Fowler passed out of Senate Transportation Committee to require that van-accessible only parking spaces must be clearly marked and designated as such prior to a citation being issued to an otherwise eligible driver who is authorized to park in a handicapped space.  The fiscal note states that the bill specifies that parking spaces for disabled persons that are exclusively for van access shall bear a sign indicating "Van Accessible Only" or "Vans Only" in addition to the stylized wheelchair symbol.  Further, it provides that no person otherwise authorized to park in a space for disabled persons shall be cited for parking in a van accessible space if it is not properly marked.  Senator Fowler stated, "The current practice is unconscionable.  If this bill becomes law, it will mean that proper notice must first be given before government can go around and give tickets to disabled people who just happen to arrive by automobile instead of by van.  We don't need police picking on people in wheelchairs unless it is clear that only vans for the disabled are allowed to park in this space."