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What is the Solution?

 

Legislation pending before the TN General Assembly will reform our state’s medical liability laws to protect patient access to quality healthcare services throughout the state and protect Tennessee physicians from frivolous lawsuits and unpredictable jury awards.

Tennessee's doctors, along with other healthcare organizations and business groups, need your help to pass medical liability reform bills. New legislation will be introduced in the 2006 General Assembly. 

 

Tell your legislators you support these bills because they:

How Do We Know Reforms Work?

Protects Access To Medical Services

Medical liability reforms help protect patient access to quality healthcare:

  • More than 30 of Tennessee 's 95 counties have inadequate access to obstetrical care; 15 counties have no obstetrical access. (Source: TN Department of Health, Health Access Plan 2004)
  • 72% of Tennessee doctors responding to a survey report their medical communities already have a shortage of high-risk specialists and great difficulty recruiting new physicians. (Source: TMA MLR Survey, November 2005)
  • 47% of surveyed doctors said they have already stopped providing certain services because of medical litigation concerns. (Source: TMA MLR Survey, 2005)
  • Without medical liability reform, Tennesseans could lose vital services such as mammograms, delivering babies, emergency room care and some surgical procedures, especially in rural areas.
  • Without significant reforms, 1/3 of Tennessee physicians indicate they are somewhat or very likely to retire early and/or leave the practice of medicine entirely. (Source: TMA Crisis Determination Survey, 2005) 

Reasonable limits on non-economic damage awards; no limits on the amount of economic damages

 

MLR legislation would not block access to the court system or limit a patient’s right to receive legitimate awards for actual economic damages (i.e., loss of wages, medical bills, actual hard costs, etc.) in cases of true malpractice. Instead, the bill would only impose reasonable limits on non-economic damages, or “pain and suffering” damages.

 

These damages include such things as emotional distress and loss of consortium or companionship – losses that have no precise cash value. Juries receive minimal guidance in this area and thus have a difficult time assigning a dollar value to these losses. As a result, these awards tend to be erratic and increasingly excessive, because of the emotional nature of personal injury trials. 

 

Setting limits on such non-economic damages would ensure that injured patients receive reasonable compensation for their emotional and other non-economic losses while helping to break the cycle of skyrocketing awards that lead to higher malpractice rates that in turn lead to higher healthcare costs and decreased healthcare access.

 

Limits are not a new concept in Tennessee. Our own government entities saw the need for such limits and have imposed such protections for themselves. A Government Tort Limit of $300,000 for total damages is in place. MLR bills would allow injured patients to receive unlimited economic damages and set reasonable limits on non quantifiable damages. This solution is less rigid than the state's own liability law.

 

Ensure that all medical liability lawsuits are valid or require a Certificate of Merit

 

In 2004, 88% of medical lawsuits in Tennessee were without merit, higher than the 80% national average, so it stands to reason that Tennessee lawmakers should enact a law to require future medical malpractice lawsuits to obtain a Certificate of Merit or otherwise undergo a procedure to establish their validity. This proposal would ensure that only valid cases of malpractice are allowed to proceed, saving time, money and resources on all sides.

 

A mechanism for patients to receive a greater percentage of award dollars

 

Tennessee statistics show that patients receive less than 48% of final jury awards. Some national studies indicate injured patients receive as little as 22 cents on the dollar from a malpractice award.

 

Trial lawyers receive 33.3% of the award, plus their billable-hour charges, plus any other costs associated with court representation. 

 

In order to ensure that more award dollars go to injured patients, this bill would set four limitation ranges on the amount of attorney’s fees that may be awarded in medical malpractice cases. Instead of the current limit of 33 1/3 percent, attorney's fees would not exceed: 

(1) 40% of the first $50,000 of damages recovered;
(2) 33 1/3% of the next $50,000 recovered;
(3) 25% of the next $500,000 recovered; and
(4) 15% of any amount on which the recovery exceeds $600,000.

 

As a patient's injuries demand higher compensations, such reforms would make sure the award dollars go to the patient, not the attorneys.

 

Means to help ensure that award dollars go for the intended purpose 

 

Periodic payments can help ensure that financial support will be available over time. Too often, lump sum awards are used up, leaving patients without the funds necessary to continue payment for care, as intended.

MLR legislation would authorize the trial court in a medical malpractice case, at the request of either party, to enter a judgment ordering that money damages or its equivalent for future damages be paid in whole or in part by periodic payments, rather than by a lump-sum payment, if the award equals or exceeds $75,000 in future damages.

Periodic payments for future damages would only be subject to modification in the event of the death of the victim. In such cases, money damages awarded for loss of future earnings would not be reduced or payments terminated, but would be paid instead to persons to whom the victim owed a duty of support immediately prior to the victim's death.

 

Provides a level paying field between defense and plaintiff lawyers to conduct pretrial interviews

 

Presently, defense attorneys are not allowed to informally interview potential witnesses about issues pertaining to a case due to patient confidentiality laws. New legislation would afford defense attorney the same rights as plaintiff attorneys to conduct informal questionings with potential witnesses without the need for formal depositions. This would save time, money and level the playing field.

 

 

Reforms Work.
These are just some of the states achieving MLR reform in recent years:

  • California – its MICRA law (Medical Injury Compensation Reform Act), passed in 1975, is held up as a national model for medical liability reform, due to its success in controlling healthcare costs and ensuring access to care:
    • California’s premiums grew 167% over the past 25 years, compared to 505% in other states.
    • MICRA has kept insurance costs down. In 1975, California’s doctors paid 20% of the gross costs of all malpractice insurance premiums in the country; today, it is 11%.
    • In California, patients get their money faster. Cases in California settle 23% faster than in states without caps on noneconomic damages.
    • After being upheld by the California Supreme Court in 1986, MICRA dramatically reduced medical malpractice losses, from about $429 million in 1986 to just $49 million in 1991; losses stabilized beginning in 1992.

Read more: www.micra.org

  • Georgia – in February 2005, Georgia won passage of Senate Bill 3, a civil justice reform bill. Immediate benefits:
    • Premiums are stabilizing. Two companies, MAG Mutual and ProAssurance, did not increase rates in 2005 for three specialties (internal medicine, general surgery, and OB/Gyn). A third malpractice insurer reduced premiums 4.7% for Georgia physicians specializing in internal medicine.
    • The number of medical malpractice lawsuits is declining and the average settlement amount is stable;
    • One main insurer has pledged to rollback premiums 10% and refund insured physicians the difference between premiums collected and reduced actuarial cost if the Georgia Supreme Court upholds the $350,000 cap on noneconomic damages.

 

  • Mississippi – won medical liability reform in 2002 and enacted a broader civil justice reform bill in 2004, which strengthened many of the earlier reforms. Mississippi State Medical Association reports the following improvements:
    • The number of lawsuits against physicians has plummeted from more than 1,000 a year to only a few hundred.
    • Insurers have announced premium cuts for 2006 and rebates on 2005 premiums.
    • Abusive mass tort cases have been thrown out, with the courts telling out-state plaintiffs to go sue in their own states.
    • Hospitals and medical practices can now recruit new physicians, including sub-specialists.
    • “One of the most rewarding moments occurring after the passage of the new law came from a group of medical students who had planned to leave Mississippi to practice elsewhere. They said that they are so encouraged by the changes in our judicial climate they feel safe once again making plans to stay to practice in Mississippi.” -- Charmain Kanosky, MSMA deputy director and director of Government Affairs.