Sides divided over need for medical liability reform

March 19, 2006

By HANK HAYES
Kingsport Times-News

Patients have sued doctors after being treated, but Kingsport obstetrician-gynecologist Dr. Sean White said he was sued by a patient he never met.

"It was a typo," White explained. "The secretary erroneously put my name on the chart as the admitting physician ... (but) it took six months of depositions, contacting my lawyer and paying legal fees in order to get me off that case."

White said his experience of being sued needlessly is an example of why Tennessee desperately needs medical liability reform.

The American Medical Association (AMA), Tennessee Medical Association (TMA) and a group of mostly Republican lawmakers are behind him 100 percent.

Last month, the AMA announced Tennessee is the 21st state designated by the AMA as being "in crisis" due to a deteriorating medical liability climate that is jeopardizing patients' access to care.

"Tennessee is facing a ‘perfect storm' - a collision of destructive influences that is greater than the sum of its parts," said TMA President Phyllis Miller. "The high cost of our broken legal system is driving up the cost of patient care, medical liability insurance, and the cost of doing business in Tennessee. The constant threat of a lawsuit is forcing physicians to rethink their career choices. Without relief, Tennessee physicians often have no choice but to curtail their practices, move out of state, or discontinue practicing medicine altogether. Patients will be left without access to the medical care they need."

TMA insists the situation makes it difficult to attract physicians to Tennessee. A TMA survey found that 70 percent of Tennessee's physicians believe the state has a shortage of high-risk specialists.

AMA data from 2004 also showed that of Tennessee's 95 counties, 81 had no residing neurosurgeon; 49 had no residing orthopedic surgeon; 47 had no residing emergency physician; and 42 had no residing obstetrician-gynecologist.

AMA also cited other data showing that from 1995 to 2005, Tennessee physicians have seen liability insurance premium increases as high as 127 percent to 212 percent.

To address the situation, physicians are getting behind legislation that would cap patients' non-economic damages at $250,000 and limit patients' attorneys' fees. The bill is sponsored by state Sen. Mark Norris, R-Collierville, and state Rep. Doug Overbey, R-Maryville. Present Tennessee law provides that in a medical malpractice action, the plaintiff may state a demand for a specific sum, but the demand is not disclosed to the jury during a trial of the case.

Leading the charge against the Norris-Overbey legislation is the Tennessee Trial Lawyers Association (TTLA). The group claims caps on non-economic damages discriminate against minorities, women, children, seniors and the disabled. Non-economic damages also cover "very real losses" like the loss of a limb or sight or severe and permanent disfigurement, according to TTLA.

"I think a lot of the doctors mean well, but a lot of the doctors don't fully understand the details of the bill," Kingsport attorney Larry V. Roberts said of the Norris-Overbey legislation. "This is not about doctors. It's not about lawyers. It's about the public and what is best for the public and how to protect the consumer. That's what is important."

Over half of the United States have limits on damage awards, and many states have established limits on attorney fees, according to the National Conference of State Legislatures (NCSL). In 2005, NCSL says 48 state legislatures responded to fevered calls for medical liability reform by introducing over 400 bills.

This year, Northeast Tennessee physicians are making their case for reform during regular trips to Nashville for one-on-one meetings with lawmakers.

"We had a busload of physicians from Carter, Sullivan and Washington counties go to the Capitol to talk about medical liability reform," White said of physicians who are backing the Norris-Overbey legislation. "If you have an infant who's injured and has a big award, that payment may not be available for the child. It may be all spent. The parents could buy a big house, a Mercedes, a yacht, whatever with the winnings, and the child has none of the award to live off of. ... Let's say you have an $8 million award, and if the plaintiff was injured that badly, why should a lawyer get almost $3 million out of it?"

White also pointed out physicians cost the health insurance industry billions of dollars because of "defensive medicine" - ordering tests to make sure their bases are covered.

"If somebody comes in the emergency room with a headache, you have to order a CAT scan ... just to cover your butt," he noted. "Anytime you are hauled into court, you will find somebody who said ‘Oh, you didn't order this test?'"

The TTLA says Tennessee doesn't have "runaway juries" hearing medical malpractice cases. In 2004, 81 percent of all medical malpractice settlements resulted in no payment of damages, and the remaining settlements resulted in an average payment of $243,994 per claim, according to the Tennessee Department of Commerce and Insurance. During that year, there were six verdicts in medical malpractice cases with judgments totaling $1.9 million.

"The average medical malpractice case costs thousands of dollars (to go to court), and there's no guarantee of prevailing. ... There are tons of malpractice cases that are never brought," said Kingsport attorney Don Mason.

The Norris-Overbey medical liability reform bill has a better chance of passing in the Republican-controlled Senate but not in the Democrat-controlled House, said Senate Majority Leader Ron Ramsey, R-Blountville.

On Monday, TMA and TTLA officials are expected to meet and talk about the Norris-Overbey bill. Ramsey said the meeting was organized by state Sen. Curtis Person Jr., R-Memphis.

"Curtis is the linchpin as to whether this (medical liability reform) bill passes," Ramsey said of Person. "He may be the swing vote, and he's not running again (for re-election). In the House, the Judiciary Committee is controlled by trial lawyers and Democrats, and (the bill) will have tough sailing."

White warned that if the bill doesn't pass, health care is heading toward a slippery slope.

"This problem is only going to continue to get worse. ... It's going to start taking its toll on patients," he said. "Three of my partners have stopped delivering babies."

For more about the Norris-Overbey bill go to www.legislature.state.tn.us and click on "Legislation." The bill's number is SB 3802.