TMA drafts medical malpractice reform bill that's destined for plenty of resistance

Memphis Business Journal
March 10, 2006 by Scott Shepard

The Tennessee Medical Association has taken the next step in its quest for medical malpractice reform by releasing a draft bill to be presented in the General Assembly this year.

The campaign began last fall with a grassroots effort by health care interests across the state to press their legislators to support tort reform this year. It was followed with a Feb. 14 press conference in Nashville, where the American Medical Association declared Tennessee to be in a state of crisis as one of 16 states which lack liability reforms.

Nonetheless, a coalition of more than 40 health care entities across the state have already joined the effort. Many of the participants often have sharp differences between them; providers and insurance carriers, for example, are often at loggerheads, but they are uniting behind the bill.

The lead sponsor of the bill, Sen. Mark Norris, R-Collierville, begins a series of meetings later this month to refine the language of the bill. The Tennessee Health Care Association, which represents long-term care facilities, has several changes in mind, including changes to the discovery process that take the focus off clinical issues of a case.

A popular tactic in malpractice suits has been to demand corporate documents in an attempt to persuade juries that a nursing home provided negligent care in order to bolster profits, says Memphis attorney Rebecca Adelman.

"You bring in a corporate executive to talk about the company's incentive programs, and you are getting too far away from a patient's broken leg," she says. "It's all about getting the money in front of the jury, but we'd like to see the evidence limited to what's relevant to the case."

Another goal of the industry is to get a 90-day limit on expert testimony, instead of the year now allowed.

Also, nursing homes would like to include the protection of a health care provider to include nursing home management and vendors, who often get swept up in lawsuits.

It's likely that other supporters will want to tweak the bill, which runs the risk of creating something unwieldy with enough rules that plenty of legislators could find reason to object. The TMA's goal is to keep all the players focused on the core goal, which is limits on non-economic damages -- the so-called pain and suffering awards that generate lottery-sized awards, with at least a third going to the plaintiff attorney.

"It's pain and suffering where juries have the greatest difficulty finding something that's reasonable," says gastroenterologist Robert Kerlan of Memphis Medical Specialists. "We'd like to see a cap on that, which has grown 400% in 10 years."

Kerlan is also president of the Memphis Medical Society.

Part of the TMA strategy has been to get doctors across the state to stay on a message that resonates. They're armed with statistics that show a dearth of OB/GYN services, especially in rural areas; fewer young doctors are going into such a litigious field of medicine.

Obstetrics care is available within 30 minutes driving in most parts of the state. The greatest loss in rural communities, Kerlan says, is the family practice doctors -- trained in obstetrics -- who can no longer afford that insurance coverage so they simply drop it from their service list.

There are comparable shortages of doctors who will take on other high risk medicine. 100% of the state's high-risk cardiac surgeons have been sued in the last 10 years, as have most of the orthopedic surgeons, according to TMA.

"The question becomes, are all these people guilty of actual malpractice and negligence, just because they're involved in forms of care that are inherently risky?" Kerlan says. "Our best argument is the rural communities are not going to have OB/GYN care because of the cost of premiums."

Adelman sees the potential to get the bill out of the Senate Judiciary Committee and onto the floor for a vote, then have it later torpedoed because of one item: The bill in its current form seeks access to the plaintiff's medical records so defense attorneys can build their case.

That could run afoul of federal HIPAA regulations that govern privacy, and allow patients to control who gets to see their records.