Physicians' woes may finally yield tort reform

Scott Shepard from the print edition of Memphis Business Journal

September 16, 2005

If you smoke and need surgery, there are several dozen doctors in Memphis willing to crack your chest, but you can only see the best guy if you're a veteran.

Cardiothoracic surgeon Hammond Cole is the only doctor of his type in Shelby County who specializes in lung tumors, but when his malpractice premiums went up 60% in one year he threw in the towel. Now, Cole practices full time at Memphis Veterans Affairs Medical Center, where he's protected from malpractice by federal statutes.

The Memphis Medical Society and the Tennessee Medical Association are pointing to Cole as proof that physician shortages are finally coming to Tennessee, arguing that it's time for tort reform.

Cole has only been sued once in his career, and he won that case. He still pays $16,000 a year -- one third of the normal premium -- in order to consult on some complex cases of cancer of the esophagus, even though it's money down the drain to him.

The doctors are taking a hint from their peers in Texas and making tort reform an issue today, instead of waiting for the General Assembly to convene in January. By that time, legislators are already distracted. Four local legislators are being targeted for special attention, because of the power they wield in the state capital: Sen. Curtis Person, R-Memphis, chair of the Senate Judicial Committee; Sen. Steven Cohen, D-Memphis, an attorney who sits on the Senate Judicial Committee; Rep. Lois DeBerry, D-Memphis, speaker pro tempore of the House; and Rep. Henri Brooks, D-Memphis, who sits on the House Judiciary Committee.

"We're getting active about telling doctors and patients about why this is such a pressing issue, and why we need liability reform," says dermatologist George Woodbury Jr. of Rheumatology & Dermatology Associates PC. "In Texas the insurance rates have declined 11%-17% after capping awards in 2003."

Tennessee physicians would like liability restrictions similar to what was implemented in California 30 years ago, which has since become the pattern across the nation. Sen. Mark Norris, R-Memphis, will reintroduce his bill next year that would limit so-called pain and suffering awards to $250,000, with no limit on actual economic damages.

It would also take the economic incentive away from attorneys to file lawsuits that are little more than fishing expeditions, by limiting their share of large awards. More than 80% of cases in the state result in no award, thanks largely to an aggressive defense stance taken by State Volunteer Mutual, the insurance company that covers most of Tennessee's doctors.

27 states, including Mississippi, now have some sort of caps based on the California model. As a result, half the doctors graduating from Tennessee schools now leave to practice in safer havens. Others, like Cole, limit their practice; a local OB/GYN says he is saving $100,000 a year simply by not delivering any babies.

The most specialized and experienced physicians who take the difficult cases are the most likely to be sued, which is an inducement to early retirement. Today, 70% of all doctors in Tennessee have been sued at least once; the figure is 92% for orthopedic surgeons and 100% of cardiothoracic surgeons.

Medical malpractice now totals 10% of the cost of health care in Tennessee, says TMA spokesman Russ Miller.