JH. Lee Barfield II, Bass, Berry & Sims

Nashville attorneys C.J. Gideon Jr. and H. Lee Barfield II boast more than 60 years combined experience defending physicians and other healthcare providers against medical malpractice claims. Their experiences have led them to a similar conclusion: most healthcare consumers have no idea the negative impact malpractice lawsuits have on providers, on the way medicine is practiced and on the cost of healthcare.

“We need to be more educated consumers,” said Barfield, a member of Bass, Berry & Sims since 1978. “The expectations of patients are so high. They expect to be cured. In fact, complications occur in only a small number of cases, but they do occur — and occur notwithstanding appropriate care by the providers.”

That describes the breeding ground for medical malpractice claims in today’s litigious society. The result is meritless — and sometimes even frivolous — lawsuits that prompt rising malpractice insurance premiums and the practice of “defensive medicine” by physicians who may order more tests than necessary just to ensure all bases are covered in the event of a lawsuit down the road.

“I’m not prepared to say that I’ve seen an actual net increase in meritless lawsuits, but I’ve seen a continued, significant number of cases with absolutely no merit being filed,” Gideon, of the firm Gideon & Wiseman said.

Yet both attorneys expressed doubt that a bill that passed the Tennessee Senate last year and is now before the House Judiciary Committee would make much difference if it becomes law. “It’s a step in the right direction, but it’s not the kind of substantive reform that’s needed,” Barfield said. The bill requires that plaintiff attorneys in malpractice claims file a Certificate of Good Faith that the lawsuit has merit. The certificate must be filed within 90 days after filing a complaint in any medical-negligence action.

Gideon didn’t mince words. “I did not think that what was moving through the Legislature last year did a thing to address meritless lawsuits. … I will tell you for attribution that that so-called ‘reform’ was meaningless.” He criticized the legislation on several fronts:

• The person certifying that the suit has merit faces no financial risk.

• A competent opinion witness retained in advance of filing the suit isn’t required, nor is a report from a competent opinion witness required before filing.

• A records review isn’t required.

“I frankly thought it was ludicrous,” he said.

Tort reform with a non-economic damage cap would better stem the tide of meritless lawsuits, Gideon contended. Yet such tort reform pushed by the Tennessee Medical Association and others just doesn’t have legs in Nashville, and Gideon believes he knows one reason why — the proposed $250,000 non-economic cap is too low. “Nobody can argue that if a parent is taken away from two little kids that the non-economic loss is worth dramatically more than 250 grand,” he said. “We ought to recognize that and enhance the cap — make it $1 million if need be. The key is not so much the amount of the cap, but the fact that there is a cap that allows underwriting to know that the limit is fixed.”

If given a clean slate on which to write their ideal malpractice reform recommendations, both agreed that non-economic caps are needed. Barfield also believes that the increased use of protocols offers physicians “a safe harbor of immunity from the lawsuits because they have done what reasonable, prudent physicians would do under the same or similar circumstances.” Barfield acknowledged that early in his career he opposed protocols “because they tend to get written in stone and become immutable and inflexible and they tend to be anti-innovation.” Yet, in today’s healthcare environment, he believes physicians should “fight the battle at their hospital” and encourage protocol changes when needed.

Gideon believes in a loser pays system. “That, in my judgment, would eliminate 99 percent of the excess costs associated with meritless litigation,” he said.

Secondly, he called for “careful evaluation of a di minimis exception” to the National Practitioner Data Bank. For example, if plaintiffs realize early on that their case is weak and want to settle for just enough to cover advanced litigation expenses, that settlement shouldn’t be reported to the National Practitioner Data Bank “that then follows that physician for the rest of his or her career,” he said. Thirdly, he said, hospitals and licensing boards need added protection to take action “against the people that truly are outliers” without fearing repeated lawsuits.

Both attorneys stressed that physicians pay a high price when a patient retains a lawyer and sues. That cost includes time and money, but a suit can also be career-altering. Gideon said his physician defendants fall into three categories: those who try to ignore the problem, those who “really begin to question their own judgment and wonder whether or not they’re any good at what they do,” and those who become “incredibly angry and it just takes over their life.”

Added Barfield, “The emotional toll of getting sued in a situation in which the doctor is trying their best to take care of the patient kills the relationship with the patient, and it is an extraordinarily emotional and burdensome thing.”



February 2008

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