Everything, from a journey of a thousand miles to medical liability reform (MLR), must begin with one step.
The Tennessee Legislature has taken a small step on the road toward improving the medical liability environment in the state.
In late March, the state Senate Judiciary Committee passed a good faith amendment bill that would begin to address reform by calling for early attorney certification. Under the proposed legislation, attorneys would have to show that they have discussed a possible medical liability case with a medical professional and that the attorney feels confident it has merit. Certification would insure that a medical expert had concluded in writing there was good cause to pursue a claim before a malpractice suit was brought.
The amendment also requires written notice to be sent to defendants at least 60 days before the suit is filed, and the acceleration of the process of obtaining medical records pertinent to medical malpractice cases. The bill calls for sanctions and financial penalties for attorneys who have failed to comply with the certification process three times or more.
While the Tennessee Medical Association views this legislation as a positive step in the right direction, the TMA questions the intent of some of the amendments and has voiced objections to what essentially extends the statue of limitations to 90 days and the timing of the written notice of potential lawsuits to those being sued. The amendment essentially extends the time for the certification requirement to 90 days after the lawsuit has been filed.
The TMA considers it a positive move that the amendment did not include changes to the "locality rule" requiring expert testimony in depositions or in court be from within the community where the claim originated or from a community of similar size. This prevents the sudden addition of an unfamiliar expert to the stand.
The amended bill does not include caps on noneconomic damages. Capping the amount of noneconomic damages awarded has been shown to be effective in reducing frivolous lawsuits in 30 other states in the country. The TMA considers damage caps to be the most important aspect of comprehensive reform.
TMA president Dr. Charles R. Handorf said, "For now, we will have to wait and see if the actions taken by the Senate Judiciary Committee remain intact as the legislation makes its way through the Legislature. We want to assure access to care for patients in Tennessee, and to avoid driving physicians away by failing to address out-of-control lawsuits that place an excessive burden on other patients, their doctors and all healthcare providers in the state."
The TMA statistics show that seven to 10 doctors in the state are going to be faced with malpractice lawsuits at some point in their careers. Often these cases require money and time to get to "no claim" status, resulting in unnecessary expenditure of time, energy, and anguish on the part of the physician.
The bill that passed out of committee was crafted by state Sen. Mark Norris (R-Collierville) and, although it is not as ambitious as advocates of medical reform wanted, it does "move the rock a little bit," according to Russ Miller of the TMA, and does get the process started. It is an important incremental step towards getting interested parties talking about MLR in Tennessee.
Handorf added, "For now, we will have to wait and see if the actions taken by the Senate Judiciary Committee remain intact as the legislation makes its way through the Legislature."