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After legislation aimed at reducing the number of frivolous malpractice lawsuits sailed through the Tennessee General Assembly near the end of this year’s session, Gov. Phil Bredesen signed it into law effective Oct. 1.

For the Tennessee Medical Association (TMA), which has fought for five years for medical liability reform, it wasn’t everything, but it was certainly something. “It’s not as much as we would like, but sometimes you take what you can get,” said Gary Zelizer, TMA director of governmental affairs.

The legislation, which was an amendment that rewrote the original, more comprehensive bill, passed the House 93-1 and the Senate unanimously, and it was given the nod by the trial lawyers’ organization, the Tennessee Association for Justice. The TMA had been fighting for a cap on non-economic damage awards — a cap already in place in 32 other states.

According to the TMA, between 80 and 85 percent of medical malpractice claims filed in the state end in no payouts to plaintiffs. Yet they take a toll on the healthcare delivery system and certainly create stress for providers. “There are literally millions of dollars spent on that 85 percent of claims that end up in no payment to the plaintiff. That raises healthcare costs and, as a plaintiff’s attorney, you’re working off contingency. If you don’t win the case, you get nothing. Obviously, from a trial lawyer’s standpoint, this can be advantageous to them as well,” Zelizer said.

The law contains several provisions that are victories for the Tennessee medical community. First among them is a requirement that providers be given a 60-day written notice that they may potentially have a complaint filed against them. “It’s a pre-notice, so to speak,” Zelizer said, and its purpose is to preclude plaintiff attorneys from casting a broad net and including providers who shouldn’t be parties to the claim. Tied to this provision is another – that all parties in an action are entitled to obtain complete copies of the patient’s medical records within 30 days of a written request. Providers who shouldn’t be plaintiffs could obviously be identified at this point in the process.

The linchpin of the legislation is its Certificate of Good Faith requirement. Within 90 days after the complaint, plaintiffs must consult with one or more expert witnesses and receive a written statement saying that the expert witness believes in good faith that the action has merit. The legislation doesn’t require that the certificate be turned in to the court, at least not at this point.

“Obviously, if the plaintiff’s attorney is unable to get that Certificate of Good Faith, the thought is that the action will dissolve, that it will go nowhere. … If the plaintiffs choose to proceed and ultimately the case is dismissed, and if the defense believes for some reason that the case was brought without merit, that it was frivolous, the defense does have the ability to ask the court in certain circumstances to see the Certificate of Good Faith,” Zelizer explained.

Without a certificate and with a failed case, plaintiffs may be required to assume part or all of the costs of the defense. Professional and financial sanctions against the attorney are also a possibility.

There’s also a Certificate of Good Faith requirement on the defense side, in the event that the defendant believes one or more providers aren’t named as defendants and should be. That certificate would require the opinion of an expert witness that another provider was responsible or was involved in the case.

“So there’s balance to this thing. It applies not just to the plaintiff’s attorney, but also in some scenarios, to the defense attorney,” Zelizer said.

The new law doesn’t change the definition of an expert witness — a person with a license to practice in Tennessee or in a contiguous bordering state, who practices in a profession or specialty that would make him or her expert in issues relevant in the case and who practiced during the year before the injury occurred. The court may waive the location requirement if an appropriate witness isn’t available in the region.

The new law also doesn’t affect the so-called “locality rule,” which was a sticking point in negotiations last year. An amendment to the House version of the law changed the standard of care from a community standard to a statewide standard, but that switch did not appear in the final version. A community standard of care recognizes that physicians and other providers in rural areas might not have the resources of a similar provider at a major metropolitan hospital.

Zelizer said this new law “is a little different approach,” and it was devised by Reps. Doug Overbey and Rob Briley and Sen. Mark Norris.

In a prepared statement, newly installed TMA president Robert D. Kirkpatrick, said, “This legislation will improve Tennessee’s liability environment by addressing the significant problem of meritless lawsuits. By cutting down on the glut of unwarranted lawsuits and the associated costs that clog our state’s legal system, we will see a reduction in the cost of providing patient care and help Tennessee become a more attractive state to live and work in for physicians in years to come.” He called the legislation “a crucial step on the continuing road to comprehensive reform.”



June 2008

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