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Just in time for summer, medical malpractice litigation.

A recent study released by the Aon Corporation showed that ’08 liability costs for 13 states examined were stable in the long-term care sector for the first time in nine years.

Largely to thank for the stability were the lowered costs in states that have passed tort reform in recent years. The study showed that both the frequency and the severity of claims dropped off significantly in those states.

Tennessee, sadly, remains one of the most costly states and actually topped the 13-state list for the average claim severity with a “2007 indicated average severity” of approximately $455,000.

Our own attempts at tort reform, which were a hot topic in last year’s legislative session, faltered somewhat after a promising start. Reforms, less ambitious than originally hoped for, were eventually agreed upon but absent any language placing a cap on the amount for which a plaintiff can sue. Those reforms, in a bill sponsored by Sen. Mark Norris (R-Collierville), were signed into law last month.

And while we’re on the subject of medical malpractice, we can turn our attention to two rulings recently handed down by the Tennessee Supreme Court concerning vicarious liability of hospitals.

The decisions for both cases, which dealt with plaintiffs who had received care from independently-contracted physicians in a hospital emergency room, reversed Court of Appeals judgments for the hospitals.

At issue were the admission forms both plaintiffs signed, which indicated that the emergency docs were neither employees nor agents of the hospitals. The plaintiffs argued that in their worried and hurried state when they were signing the forms so that loved ones might get treated they failed to note the actual nature of the ER doc/hospital relationship. And there in lies the rub for the court.

Looming large in both of the decisions was the issue of “whether the hospital provided its patient with adequate notice that the emergency room physicians were independent contractors rather than employees.”

The court ultimately concluded that there remain “genuine issues of material fact” and sent both cases back to the trial court for further proceedings.

The impact of these decisions remains to be seen with some medmal defense attorneys warning that they could leave hospitals more open to such claims if their admission forms are no longer legally viable disclaimers. Others seemed unphased by the decisions noting that the potential impact on hospitals will lead to more insurance to guard against the claims but little else.


Walker Duncan is a reporter at NashvillePost.com, a sister publication of the Nashville Medical News. You can reach him at walker.duncan@nashvillepost.com.



June 2008

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