Malpractice reform gets hearing

Compromise bill would weed out frivolous medical suits

By RICHARD LOCKER, KnoxNews.com
March 19, 2007

NASHVILLE - Tennessee physicians have pinned their hopes for legislative passage of medical liability reform - primarily caps on punitive damage awards - on the Republican leadership in the state Senate.

But after five years, there is now agreement among GOP leaders that the $250,000 limit on punitive damages sought by the Tennessee Medical Association won't be included in a compromise bill worked out with Democrats in the House of Representatives.

The Senate's top Republican, Speaker Ron Ramsey, last week put his key support behind the compromise aimed at weeding out "frivolous" malpractice lawsuits as the main vehicle for reducing insurance costs for doctors and other health-care providers.

Ramsey and Senate Republican Leader Mark Norris of Collierville, who has championed medical-liability reform bills for the TMA for five years, said the political reality is that limits on punitive damage awards by juries won't pass the House.

The issue may come to a head Tuesday, when Norris has scheduled a hearing on the compromise bill in the Senate Judiciary Committee.

Provisions, likely to be part of the draft, include:

Early certification of malpractice lawsuits as valid by the attorneys representing the plaintiff and a medical expert. A lawyer who signed a "certificate of good faith" on a claim found to be without merit could be fined.

Early evaluation of claims. Current state and federal law makes evaluation of a claim early in the process impossible, Norris said, because there's no access to medical records nor interviews with the physicians.

"It used to be that when a claim was filed, (lawyers) could call the treating physician and you would know if you had a meritorious claim fairly quickly," he said. "The law prohibits that now, and you have to go through a laborious process of getting releases and consents, then scheduling depositions. That prolongs the process."

Norris said negotiators are trying to find a way to streamline the process and still adhere to health privacy laws.

Exoneration for physicians. Norris said sometimes claims are filed because the statute of limitations is about to expire, but the claims are later found to be without merit. "Exoneration" would allow doctors to legally omit disclosure of such meritless claims when applying for insurance or in the credentialing process with hospitals.

Lobbyists for the TMA and the Trial Lawyers (who represent plaintiffs in malpractice cases) were not privy to the negotiations between House and Senate sponsors of the bill and are taking a cautious approach before endorsing the compromise.

"If the final version provides sufficient advancement, it's certainly something we'd take a look at and not discard it just because it didn't contain caps," said TMA lobbyist Gary Zelizer. "The question is whether we get enough out of it."

Mary Littleton of the trial lawyers association said she's also awaiting the final version but said omitting caps from the proposed legislation is a big step in the right direction. "It depends on what else is included. Certainly, adding another hurdle for injured patients is not something that is desirable. On the other hand, reducing the number of lawsuits that are without merit will help drive down costs.

"But I think it will be a compromise or nothing. That's the way the Legislature works."