The battle for meaningful malpractice tort reform in Tennessee really began in the
late 1990s—when the Tennessee Medical Association
(TMA) could no longer ignore the state’s shrinking number of physicians practicing
high-risk specialties. By 2001, the TMA made a commitment to reform its state medical
liability laws for the first time in 30 years.
In response to double-digit increases in medical malpractice premiums, the TMA reported
physicians were cutting back on their practice, leaving the state or retiring early.
According to a TMA survey, 100 percent of cardiac surgeons, 92 percent of OB/Gyns,
92 percent of orthopedists and 70 percent of all Tennessee doctors had faced legal
actions in the previous decade. The same survey showed that 42 of the state’s counties
had no residing OB/Gyn in patient care; 47 counties had no residing emergency physician,
49 counties had no residing orthopedic surgeon and 81 counties had no residing neurosurgeon.
Both conservative legislators and physicians pointed to these surprising statistics
as undeniable evidence of a growing medical liability crisis affecting Tennesseans’
access to healthcare.
Despite the TMA’s public awareness and state lobbying efforts, little progress was
made. By 2005, the State Volunteer Mutual Insurance Company (SVMIC)—Tenessee’s largest
writer of medical liability insurance—had increased premiums by 130 percent for
OB/Gyns, 131 percent for neurosurgeons, 212 percent for emergency medicine and 127
percent for internists over the course of the previous decade. In 2006, Tennessee
was the 21st state added to the American Medical
Association’s (AMA) list of “Medical Liability Crisis States.”
Pointing to the dubious distinction bestowed upon the state by the AMA, the TMA
made its most aggressive push for tort reform legislation that would cap non-economic
damages at $250,000, place a sliding scale on attorney fees and create tougher requirements
of top-rated witnesses. The bill was defeated in the five-member Civil Practice
subcommittee of the House Judiciary Committee by a vote of three to two.
Two years later, the TMA had its first real legislative victory on its continuing
road toward meaningful tort reform. The long-debated amendment to organized medicine’s
medical liability reform legislation passed the Tennessee Senate unanimously and
the House of Representative by a vote of 93 to one. It was signed into law by Gov.
Phil Bredesen and became effective on Oct. 1, 2008.
The bill contains several provisions that are victories for the TMA. First is a
requirement that providers be given a 60-day written notice that they may potentially
have a complaint filed against them. The purpose is to eliminate attorneys suing
providers who shouldn’t be parties to the claim. It also requires all parties in
an action obtain complete copies of the patient’s medical records within 30 days
of a written request so that doctors who shouldn’t be plaintiffs can be identified
at this point in the process and eliminated from the lawsuit.
The most significant portion of the legislation is its Certificate of Good Faith
requirement. Within 90 days after the complaint, plaintiffs must consult with one
or more top-rated witnesses and receive a written statement saying that the top-rated
witness believes in good faith that the action has merit. This is designed to reduce
the number of medical malpractice claims that end in no payment to the plaintiff
by eliminating all frivolous claims.
While the bill didn’t include caps on punitive damages, the TMA said they expect
this bill will create better options for real cases and weed out frivolous actions.
The TMA also anticipates that the results this bill will bring will affect a reduction
in liability insurance rates statewide in the near future.