Practitioners may finally have state's ear for tort reform

Memphis Business Journal
September 26, 2005

 For more years than we can remember, the physicians and other health care providers of Tennessee have been asking state government for some kind of tort relief. Unfortunately, Tennessee state government has long been run in emergency mode, like a runaway freight train, with a crew constantly trying to keep it running so it doesn't crash.

So every time the General Assembly convenes and the providers go to Capitol Hill to make their case, there's something else more pressing. Reforming the laws on torts and medical malpractice liability will just have to wait, they're told. Besides, things seem to be going along OK, and there is this other crisis to be dealt with right now.

This time, the crisis to be dealt with is tort and malpractice reform. Spreading like kudzu from surrounding states, Tennessee is now at the cusp of a downward spiral and it's up to legislators to pull things back. The option of ignoring it all will quickly lead the state down the long slide and hit the bottom Mississippi struck two years ago.

Only after being shamed on late night TV and being the butt of jokes did the Magnolia State implement reforms, and the benefits are already showing up.

The signs in Tennessee are clear: the only cardiothoracic surgeon in Memphis with a subspecialty in lung tumors can't pay insurance that goes up 60% a year; fully half of the new doctors graduating from Tennessee schools now seek to practice in one of the 27 states with reasonable limits on malpractice; OB/GYNs can save $100,000 a year if they don't deliver babies, and they get to sleep all night.

What the medical professions seek is not unreasonable. A bill sponsored by Sen. Mark Norris, R-Memphis, calls for a $250,000 limit on non-economic, or pain-and-suffering damages. There would be no limit on actual financial damages.

The lottery-like malpractice awards come mainly from the non-economic side, often said to "send a message" to doctors and hospitals, according to plaintiff lawyers. Since more than 80% of their malpractice cases are thrown out on the first motion, reforms would send them another message about trying to score large on the suffering and ignorance of others.

Plaintiff attorneys have managed over time to muddle the distinction between actual -- but rare -- negligence and a person who's unhappy with a bad outcome.

Tennessee doctors are laying the groundwork for a full assault on the General Assembly when it convenes in January, so they won't be brushed aside again. They also have the advantage, as it were, of being the
major crisis in state government this year.