Doctors lining up support for liability reform legislation

Nashville Business Journal
by Erin Lawley

After years of legislative frustration, the Tennessee Medical Association is deploying a new tactic aimed at turning a medical liability reform bill into law.

The organization has started an online and mail-in petition targeting supporters of medical liability reform. It plans to gather several thousand signatures and give copies to lawmakers in the spring as incentive to debate the issue.

TMA officials say such legislation would lower health care costs across the board – costs that continually plague individuals and businesses through rising insurance premiums and deductibles or dropped coverage.

“I’ve had legislators say they did not think patients thought this issue is important,” says Mike Minch, vice chairman of TMA. “So we’re going to demonstrate that patients have an issue, and it’s important.”

The legislation TMA wants put into place calls for a $250,000 cap on non-economic damages (pain and suffering), requires pre-certification of cases and creates a sliding scale for attorney fees based on a case’s settlement or judgment.

Doctors who are afraid of lawsuits practice defensive medicine, often ordering unnecessary tests, which add extra layers of cost, says Minch.

“That money gets spread out over everyone who pays, including small business people,” he says.

The TMA has backed a version of the reform bill in every legislative session for the past few years, but it has never seen the floor in either house for discussion, Minch says. It was killed by a 3-to-2 vote in a subcommittee last session.

Opponents of the bill say the “defensive medicine” argument is just a stab at good medical practice and decreasing incentives for thoroughness isn’t the answer to the country’s broken health care system.

“When you remove an incentive to provide safe care, patients are not safer,” says Mary Littleton, legislative counsel for the Tennessee Trial Lawyers Association. “The practice of medicine should be preventative… and restricting the rights of patients to seek justice when there’s been a preventable medical mistake doesn’t provide an incentive to provide safe care.”

Health care insurance premiums grew about 7.7 percent in 2006, faster than the 3.5 percent inflation rate rise and 3.8 percent hike in worker earnings, according to the Kaiser Family Foundation. And between 2001 and 2005, the share of employees covered by employer sponsored insurance decreased from 81.2 percent to 77.4 percent.

The sides also disagree sharply on other points:

TMA asserts that rising malpractice insurance premiums are discouraging doctors from practicing specialties in rural counties, or in Tennessee at all. TMA estimates that rural counties have lost more than 40 percent of their obstetricians, reducing access to care for many citizens. It has no data on doctors leaving the state, Minch says.

John Day, an attorney with Brentwood firm Branham & Day, says there is no evidence that doctors are leaving and rural counties don’t have the population or health care infrastructure to support all specialties.

“Do you think there should be an OB (obstetrician) in a county of 10,000 people?” Day asks.

Then there’s the provision that would create a sliding scale for attorney fees in a case – paying them amounts either greater or less than the 33.3 percent limit currently in place, depending on the amount of damages awarded.

“Currently, less than half of the jury award dollars go to patients,” says Minch. Attorney fees and court and administrative costs eat up the rest.

Littleton calls that assertion a myth: “Either they’re being blatantly dishonest or they don’t understand how the law works. Attorney fees are capped and from the attorney fees, the attorney takes all the expenses.”

Paige Kisber, president and CEO of the Hospital Alliance of Tennessee, says she thinks the two parties need to find a middle ground to handle the issue.

“I don’t know that caps are a realistic expectation,” says Kisber, whose association represents nonprofit hospitals. She doesn’t think either side will agree on a total package that includes provisions for caps and fees.

Focusing on precertification of cases to weed out frivolous law suits is the better way to go, Kisber says. “I think there are a lot of places we can work in the middle to reach a little more common ground.”
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