Med-malpractice deal within reach on Capitol Hill

By Ken Whitehouse

March may come in like a lion and out like a lamb, or vice-versa, but who would have guessed that March 2007 might be the month when the lion would lie down with the lamb?

That’s what may be afoot, as a nationally unprecedented concord among medical providers and the legal profession comes together — just maybe — to bring a brand-new model of malpractice litigation reform to Tennessee.

Significant changes in Tennessee laws regarding medical malpractice lawsuits may be imminent, according to sources from various sides on the issue who have spoken to on condition of anonymity in recent days.

The ongoing battle that has pitted attorneys, hospitals, insurance companies and doctors against each other in varying versions of tort-reform legislation for many years may be headed for a cease-fire — if not a full peace treaty.

An agreement has been reached in principle by leaders of the state’s legal and medical communities that proponents believe would lower the number of medical malpractice lawsuits filed in Tennessee and still protect the interests and rights of all parties.

What is not in the agreement is a cap on the amount of any given medical malpractice claim. Should caps — either an outright ban on them or their imposition — be included in legislation passed by either the Tennessee House or Senate, it is likely that this agreement would be null and void.

The agreed-upon changes to Tennessee law, which are listed below, would require at least three different bills to pass through both chambers of the legislature. A variety of interest-groups would each have to each have to give ground on long-held stands for all of these measures to pass. The odds against legislative success are substantial — but in this field, they have never been more surmountable.

According to’s sources, legislation will be introduced to the Tennessee General Assembly that will:

* Require lawyers to obtain a “certificate of good faith”

This certificate would be different from the pre-certification of medical liability lawsuits that is required in some states. To get pre-certification, the plaintiff only needs a medical professional to sign a paper saying that a case has merit. That person rarely has any involvement with the actual lawsuit.

According to representatives from both sides of the proposed changes in Tennessee, states with pre-cert provisions have failed to realize any decrease in the number of medical liability lawsuits filed.

With a “certificate of good faith,” attorneys would have to show that they have discussed the medical liability case with a medical professional and have concluded to their own satisfaction that it has merit. If counsel are found by the court not to have complied with the law and checked on the merits of the claim, they could be subject to so-called “Rule 11” penalties for bringing frivolous litigation.

Violation of the law three times or more would subject lawyers to sanctions by the Tennessee Board of Professional Responsibility, an obligation to pay the legal fees of the defendant, and having to post a $10,000 bond per defendant in future legal procedures involving medical liability.

* Protect or “exonerate” physicians

Currently, Tennessee doctors seeking to affiliate with a hospital or medical organization are asked if they have ever been sued. This question can have significant bearing on whether that doctor will be able to work out a desired affiliation.

A problem, according to the medical community, is that doctors have been named in lawsuits for simply having written an article in a medical journal about a procedure. The doctor has not been central to the case filed and usually sees his or her name thrown out of the case within a short time. Regardless, docs still have to answer that they have been sued.

Under the proposed new rules, doctors and hospitals would not consider these or similar situations as “having been sued.”

* Investigative interviews

In most cases where medical malpractice occurs, a follow up medical procedure is required. Tennessee law does not compel that second physician to speak with either plaintiff or defendent investigating a medical malpractice claim. Under the new rules a physician could be compelled to discuss his or her medical findings with both sides.

* Modification of locality rule

When a doctor is sued, a member of the medical community who is familiar with the community where the claim has originated from, or is from a community of similar size and like medical facilities, testifies in court or in deposition.

The intent of this provision has been to provide juries with a medical peer familar with the conditions of practicing under a similar circumstance as the defendent.

What this standard has devolved into, in practice, is that testimony and verdicts have been thrown out in cases because a doctor from out of town didn’t know exactly how many beds were in a given community’s hospital or what type of CAT-scan machine was used at another hospital.

If the changes that are to be proposed are enacted, both doctors and lawyers can dispense with that line of questioning and concentrate on the claim of malpractice.

* Extension of reporting statute

Three years ago, the Tennesee legislature enacted a law that began the collection of information regarding medical liabilty claims. The information that has been gathered over that period of time has resulted in the proposed changes to the law listed above, according to’s sources.

To see whether these changes, if enacted, have the desired effect of lowering the number of medical malpractice claims in Tennessee, the reporting statute will have to be extended.
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