Medical Malpractice Notice and Certificate of Merit Bill Sent to Governor

The legislation creates a significant hurdle for filing medical malpractice actions in Tennessee. Attorneys now face a financial penalty for filing cases without consulting an expert before or shortly after filing suit.

Previous discussion here. The limit on damages did not make it in to the final bill. That's next.

(By way of ACK)

Tennessee lawmakers have introduced a tort "reform" bill aimed at protecting nursing home operators from lawsuits. The bill (SB4075/HB4053) would:

• Require lawsuits against long-term care facilities involving health-related services to be brought solely as medical malpractice action (see separate post about what they want to do to "malpractice" lawsuits)

• Allow operators to require patients to waive their right to a jury trial as a condition of admission

• Limit non-economic damages to $300,000

According to Medical News Today, a prominent nursing home operator says the legislation is needed because of personal injury lawyers driving up the cost of liability insurance:

"The average annual cost of items like liability insurance, legal services and other liability-related issues is now $500,000 per Tennessee nursing home - enough to hire and pay for 10 new nurses," said Steve Flatt, senior vice president of development for National Healthcare Corp., an operator of several Tennessee nursing homes.

"The problem is that our laws right now allow the filing of limitless lawsuits claiming tens of millions of dollars in damages," Flatt said. "The result is that the big- money personal injury lawyers from Texas and Florida have been arriving regularly to pelt our courts with lawsuits."

Raise your hand if you think nursing homes will use any savings from this legislation to hire more nurses.

And if the name National Healthcare Corp. rings a bell, it's probably because of the tragic nursing home fire at one of their facilities in Nashville that claimed sixteen lives. The deaths resulted in more than 30 lawsuits.

The company has been the target of other lawsuits alleging abuse and neglect, including a Warren Co. case in which the jury awarded $4.1 million in compensatory damages and $28.9 million in punitive damages, which were later reduced to $163,000.

The company was also the target of a probe into massive Medicare fraud. They settled with the U.S. Department of Justice for $27 million.

Instead of allowing special interests to influence legislation, Tennessee should pursue better regulation and oversight of nursing homes to protect the safety and dignity of patients in these facilities. Who lobbies for the people?

Sen. Paul Stanley (R-Memphis) has introduced "tort reform" bill SB2929, which limits medical malpractice awards to $250,000 for "noneconomic" damages, and reduces economic damages related to lost income by the amount of any unemployment, social security, or other benefits the victim might receive.

Victims would also have to specify the amount of damages they are seeking to recover. The amount is not disclosed to the jury, and if I read it correctly, the victim may not collect more than that amount even if the jury awards higher damages. It also allows payment of damages in installments.

The bill also limits the victim's contingent attorney fees, and allows a judge to set the fees. It places restrictions on expert testimony. It requires the victim to file an expert affidavit and medical records setting out the specifics of the claim. If the claim is dismissed because of a faulty or "bad faith" affidavit, the defendant is entitled to damages. The bill also requires the victim to file a HIPPA release that allows the defendant to access any of the victim's medical records, including mental health and drug/alcohol abuse treatment records, whether or not they are related to the claim.

The bill also eliminates the term "malpractice" and replaces it with "health care liability action" throughout Tennessee law.

The intent of this legislation is to make it harder to file a claim, harder to prove a claim, and harder to collect damages if they are awarded. It also increases the victim's financial risk in filing a claim, makes it harder for a victim of lesser means to get an attorney to represent them, and reduces a jury's power to award appropriate damages.

In short, it's a bad bill. It was a bad bill when it was introduced in the last session, and here's why.

Where's the bill to protect patients from incompetent doctors and negligent hospitals? Where are the bills to improve patient safety and outcomes? Where's the bill to make all malpractice and regulatory actions public and easily accessible so consumers can make informed choices about their health care and providers?

These steps would do more to reduce medical malpractice and the associated costs than trying to pretend it doesn't happen and make it disappear through hocus pocus "tort reform" legislation.

You should contact your state senator and representative and let them know this is a bad bill for health care consumers and ask what they are doing to promote patient safety.

According to this report in the Kingsport Times News, Tennessee trial courts awarded only $4.9 million in medical malpractice damages in 2006, and there were $100.2 million in settlements out of court. Both figures were down significantly from 2005.

According to US Department of Health and Human Services esitmates and projections, health care expenditures in Tennessee were $37 billion in 2006, meaning that malpractice claims paid were about 0.0000003% of health care costs in Tennessee, if my math is correct and I'm interpreting all this information correctly.

Meanwhile, medical malpractice insurance companies collected $345 million in premiums, and had $794.8 million in reserves according to the article.

It sounds to me like medical malpractice insurance is driving up the cost of health care, not runaway juries and trial lawyers.