Tenn. Malpractice Bill Pushes Certification to Weed Out Claims

By Erik Schelzig

A compromise on medical malpractice reform in the works by the Tennessee Legislature wouldn’t set a cap on damages but would create a way to penalize lawyers who bring frivolous lawsuits.

Insurers and doctors have been lobbying lawmakers for several years to enact damage caps while lawyers have fiercely fought them. The compromise being hammered out by House Judiciary Chairman Rob Briley, D-Nashville, and Senate Majority Leader Mark Norris, R-Collierville, may finally resolve the conflict.

“I did not believe caps would pass the House, and when we looked at the practical reality that issue was taken off the table,” Briley said.

Both Briley and Norris are lawyers. The language of the proposed agreement has not yet been filed or made public.

“I’m not ruling out caps, but we’re not there yet,” said Norris. “And our choice is to draw a line in the sand on something that’s not going to happen this year, or advance the ball toward the goal of meaningful reform.”

Briley said lawyers suing doctors in medical malpractice cases would have to certify that experts agree with the legitimacy of their claims. They would be subject to penalties if they were later found to have filed frivolous lawsuits without legitimate 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, Briley said.

“In those states where they’ve simply said that you need to have a doctor’s affidavit before the case can be filed, they have not seen a significant reduction in the number of cases filed,” Briley said.

“These little cottage industries jump up, where physicians (for a fee) will sign anything you put in front of them and will never be heard from again,” he said.

Under the Tennessee proposal, lawyers would be responsible for explaining to a judge the reasons why their cases might not have panned out how they had planned.

Briley said the bipartisan discussions reflect a compromise that doesn’t restrict access to the courts for legitimate cases.

“I’ve never in my life seen any situation where restricting patients’ rights improves patient care and safety,” Briley said.

Briley said the Tennessee Medical Association was not consulted in the negotiations because of the group’s refusal to consider similar proposals in the past.

“I think they’ve been pretty unreasonable when it comes to negotiating,” Briley said. “So when I got to the point of getting the House and Senate together on this initiative, I didn’t feel they were necessary to have at the table.”

Russ Miller, vice president of the Tennessee Medical Association, called a limit on non-economic damages the “lynchpin” of his organization’s goal of reducing lawsuits.

“Basically that was done between the legislators themselves representing probably both sides of the interests,” Miller said. “One of the things that didn’t come through was that doctors — who are probably the main focus of this legislation — were not party to these negotiations.”

Miller said he hopes lawmakers can delay action on the proposals while the group seeks a “true compromise.”

Norris took exception to the notion that lobbyists for interested groups should have been involved in the negotiations.

“It’s sometimes difficult for people to remember who the elected official is — and who is responsible for implementing legislation,” Norris said.

“To me there’s a substantive issue here, and that is whether we advance the cause of access to affordable health care through meaningful reform, or just posture for purely political reasons,” he said. “And that’s not what I’m in this for.”
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