By Richard Locker,
April 24, 2008

NASHVILLE — The Tennessee Senate finally approved a bill Thursday to curb the filing of medical malpractice lawsuits that experts say have little or no merit.

Senate Republican Leader Mark Norris of Collierville, who has sponsored medical-liability reform efforts since his arrival in the legislature in 2001, said the measure “is the most significant reform to the medical malpractice act in a generation. It’s the first time we’ve taken this significant of a step toward reform in over 25 years.”

But the legislation that the Senate sent to the governor Thursday is a heavily compromised, scaled-down version of the much broader restrictions that Tennessee doctors and other health-care providers have long sought and that Norris first filed seven years ago.

Rather than mandatory arbitration and caps on the monetary damage awards that courts can approve for injuries caused by providers, the final version focuses on weeding out claims before they get before a jury and streamlining the process so that physicians are not tied up in courts for years.

The ultimate aim is to cut malpractice insurance premiums for doctors and the costs passed on to patients and taxpayers. Gov. Phil Bredesen has signaled no advance opposition and is expected to sign it into law. It will apply to all medical malpractice claims starting Oct. 1.

The bill requires plaintiffs’ attorneys to give all medical providers who may be named in a malpractice suit at least 60 days notice before filing a lawsuit, and to file a “certificate of good faith” that the claim has merit. The certificate, to be filed 90 days after the lawsuit is filed, is based on an evaluation by an independent medical expert. Judges could sanction plaintiffs and their attorneys who they feel have acted in bad faith.

It also requires that all parties to a lawsuit be given copies of the plaintiff’s medical records within 30 days after they are requested.

After years of little progress on a broader, more stringent bill, the warring sides in the malpractice reform effort began discussing compromise in 2006 and 2007. The Senate approved the compromise last year but the House refused to go along until this year when proponents of the reforms agreed to remove a provision that limited which medical experts could testify in malpractice trials. The House approved it last week and the Senate concurred with that action Thursday.

Norris said Thursday that the potential for caps on damage awards paved the way for the compromise to weed out the “meritless or frivolous” lawsuits.

“About 80 percent of the medical malpractice suits that get filed are dismissed without any disposition. Those are costing our health care system and Tennesseans money and it’s a waste of money,” Norris said.

The Tennessee Association for Justice, formerly known as the Tennessee Trial Lawyers Association, opposed the original broader approach as an infringement on malpractice victims’ right to sue. But TAJ President Daniel Clayton of Nashville said Thursday he supports the compromise bill.

“I believe it will help eliminate or reduce some filings which should never have been filed in the first place,” said Clayton. “The bill’s not perfect but we agree with it and support it because we want to be sure there are no cases filed unless they have merit.”

Alan Ramsaur, executive director of the Tennessee Bar Association, said the TBA’s view is “if the process helps to give lawyers what they need to better determine the cases that have the most merit, then it’s a good thing. We just have to see.”

Ramsaur acknowledged that there is always a fear that the reforms could block some legitimate claims from reaching the courts — “or that there could be some other unintended consequences.”

Norris said that dismissed claims end up costing. “A number of cases are filed and later dismissed because the statute of limitations for filing them is running. What folks don’t often understand is, the minute a suit like that is filed against a health-care provider, they have to put their insurance carrier on notice and it sets in motion a whole series of events that cost money. Those costs ultimately get passed on to the taxpayers and the people who really need health care, it becomes less affordable because these costs get passed on.”

Dr. Robert D. Kirkpatrick, a Memphis physician and the new president of the Tennessee Medical Association, acknowledged that the bill is not everything that doctors wanted but called it “a crucial step on the continuing road to comprehensive reform. We understand that to achieve significant changes to law, you sometimes have to accept incremental steps leading in the right direction.”

He said the legislation “will improve Tennessee’s liability environment by addressing the significant problem of meritless lawsuits. By cutting down on the glut of unwarranted lawsuits and the associated costs that clog our state’s legal system, we will see a reduction in the cost of providing patient care and help Tennessee become a more attractive state to live and work for physicians in years to come.”

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