Compromise sought on state's malpractice laws

By TOM HUMPHREY, KnoxNews
March 7, 2007

NASHVILLE - Key legislators are trying to strike a compromise on changing the state's medical malpractice laws that would put lawyers filing unwarranted complaints at risk of facing financial penalties.

The tentative proposal, however, also would drop a key provision long sought by physicians, hospitals and insurance companies: limits on the amount of damages that can be awarded to people injured by negligent health-care providers.

"Instead of framing areas of disagreement, we are trying to find areas of common ground and agreement," said Rep. Doug Overbey, R-Maryville, who has sponsored the malpractice reform bill adamantly pushed by doctors and adamantly opposed by lawyers for the past four years.

Overbey and the bill's Senate sponsor, Senate Majority Leader Mark Norris, R-Collierville, have negotiated with House Judiciary Committee Chairman Rob Briley, D-Nashville, who has long opposed damage limits as unnecessary in Tennessee.

The bill has been widely expected to pass the Republican-controlled Senate this year and then fail in the Democratic-controlled House. The negotiating lawmakers said their efforts could break the long-running stalemate.

"This recognizes some of the political realities," said Overbey. "It's incumbent on all of us to work together to move the bill forward rather than doing nothing."

"The alternative is political gamesmanship and posturing, and I'm not in it for that," said Norris, who as a lawyer has defended hospitals against lawsuits.

Prospects for success, however, are uncertain.

Gary Zelizer, lobbyist for the Tennessee Medical Association, said the physicians organization is not comfortable with the proposal "crafted by our sponsors without our involvement."

"We just don't see it the way our sponsors did in terms of making progress," Zelizer said.

Lobbyists for the Tennessee Trial Lawyers Association, Mike Murphy and Mary Littleton, said they were not involved in the negotiations, either, but were open to considering a compromise.

Norris had the bill, which would have to be amended to incorporate the proposed compromise, before the Senate Judiciary Committee on Tuesday. He wound up postponing any action until next week.

In the past, doctor and lawyer lobbying groups have not even agreed on whether there is a problem with malpractice insurance in Tennessee.

A report issued by the state Department of Commerce and Insurance, based on 2005 data, states that $341 million was paid in malpractice insurance premiums. Only five judgments against health-care providers were handed down in the state court system that year, totaling $6,075,724.

The report also states that 2,366 claims were resolved during the year, 83 percent with no payment of damages. Of the remainder, the claims were settled with payments totaling more than $119 million. Insurance companies and providers also paid $61.7 million in expenses associated with the claims.Norris said there are four basic elements in the negotiated proposal, some involving rather complex legal matters but all aimed at evaluating and weeding out unwarranted claims on the front end.

They are:

A requirement that lawyers filing malpractice lawsuits sign a statement certifying that they are acting in good faith and believe the claim to be meritorious. If the claim is later shown to lack merit, the lawyer would be subject to penalties, including payment of the defendant's legal fees.

Elimination of a legal roadblock, established in a state Supreme Court ruling known as the Givens' case, that Norris and Overbey said makes it costly and time-consuming to get access to medical records needed to evaluate claims.

Elimination of a current requirement that health-care providers list every occasion they are named in a lawsuit when they seek insurance or apply for credentials. Under the proposal, the providers would not need to list occasions when a lawsuit or claim was dismissed as improper early in litigation.

Authorization for both sides in a malpractice dispute to interview, without current strict legal procedures, other doctors and representatives of health-care facilities involved in a patient's treatment.