Tenn. Compromise Medical Malpractice Measure Stalls

It’s been more than two weeks since Tennessee lawmakers vowed to press ahead with a compromise over medical malpractice lawsuits without support from health care lobbyists. The measure hasn’t advanced much since then.

House Judiciary Chairman Rob Briley said frustration is rising among members of both parties who cobbled together a tentative compromise. The Tennessee Medical Association — a group the Nashville Democrat calls “organized medicine” — has been pushing for stricter rules than Democrats wanted to accept.

“Efforts haven’t been derailed, but they have been slowed down significantly since organized medicine got involved in trying to tinker with the proposal that the bill sponsors and I had worked out,” Briley said.

Senate Republican Leader Mark Norris and Rep. Doug Overbey, R-Maryville, are the sponsors of the measure designed to limit frivolous lawsuits against doctors. They decided to leave the association out of earlier negotiations with Briley that resulted in an agreement to omit the group’s long-standing demand to enact caps on lawsuit payouts.

Instead, lawyers suing doctors in medical malpractice cases would have to pre-certify the legitimacy of their claims by gaining approval from independent experts. They would be subject to penalties if they were later found to have filed frivolous lawsuits without proper vetting.

Attorneys found in violation could be forced to pay the court costs for defense lawyers and could be hit with other penalties. They could also have their names reported to the Board of Professional Responsibility.

Russ Miller, vice president of the Tennessee Medical Association, previously called a limit on non-economic damages the “linchpin” of his organization’s goals. Recognizing that caps are not likely to pass this year, Miller now says the group wants to make the rest of the measure stricter.

“We want to ensure we put some real meat on to efforts to weed out lawsuits that don’t need to be clogging our legal system,” he said.

Norris acknowledged some unhappiness among the health care lobbyists for having been left out of the original negotiations.

“I think that some of their feelings were hurt, and that there was a misunderstanding about who has legislative responsibility and who has lobbying responsibility,” Norris said. “Once they got over that hurdle … they began paying attention to the wording.”

Norris said the two sides are discussing the details of pre-certification and whether opposing lawyers should have more access to a plaintiff’s medical information before a case gets under way.

“It used to be that if you put your own health at issue, there were no secrets _ the defense could get access to my medical records and talk to my doctors,” Norris said. “That’s no longer the case.”

Briley said it might have been a “tactical error” on the Republicans’ side to let the TMA back into the negotiations.

“Organized medicine has said ‘if we don’t get caps, we get everything else,”’ Briley said.

Norris responded that both doctors and lawyers just want to make sure they don’t lose too much.

“Each side is suspicious about the other side overreaching,” Norris said.

Senate Speaker Ron Ramsey, R-Blountville, said he will defer to Norris on the negotiations is willing to move forward on the original proposal to impose caps if they fall apart.

“I’m prepared to move the bill forward with the caps if we can’t work out some kind of compromise,” said Ramsey. “But we’d be moving it forward realizing it’s going to have a tough time in the House.”

Norris and Briley said they could bring the proposal before their chambers’ respective Judiciary Committees next week.

House Speaker Jimmy Naifeh, D-Covington, has said he would consider Briley a “miracle worker” if he could resolve the long-standing impasse over medical malpractice lawsuits.

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Read full text of SB2001 (the original version without the proposed compromise) on the General Assembly’s Web site at http://www.legislature.state.tn.us/