Liability reform bill approved by Senate

Proposal would limit excess medical malpractice lawsuits

By Richard Locker, Commercial Appeal
April 3, 2007

NASHVILLE -- The state Senate approved a compromise medical-liability reform bill 30-0 Monday night designed to reduce "meritless" malpractice lawsuits against doctors, hospitals and other health care providers.

The bill is set for review today in a House subcommittee that has traditionally killed liability bills. The compromise negotiated between Senate Republicans and House Democrats may pave the way for the passage.

The compromise excludes a proposed $250,000 cap on "non-economic" damages that the Tennessee Medical Association has sought for six years -- but which is opposed by lawyers who represent malpractice victims. Non-economic damages include punitive damage awards, awards for "pain and suffering," "loss of ability to enjoy life," wrongful death and claims other than for direct payment for medical bills and lost wages due to an injury.

Senate Republican Leader Mark Norris of Collierville, the bill's Senate sponsor, said the agreement "is designed to address one of the problems that plaintiffs' lawyers, defense lawyers and the state agree on -- an excess of cases filed.

"About 80 percent of cases filed are dismissed. This bill is a giant step toward preventing meritless claims from being filed in the first place."

It attempts to do that by requiring lawyers to notify all defendants at least 60 days before filing a suit; requiring lawyers to file a "certificate of good faith" that says they consulted a medical expert who agrees the claim has merit, and making it easier for parties to get quicker access to medical records.

Judges could sanction lawyers who violate the provisions.

The House may add a provision to alter an existing legal rule that experts who submit testimony in a case must be familiar with the standards of medical care in the community where an injury occurred.

Some lawyers on both sides of the issue favor a rule change to require experts be familiar with a statewide standard of care. Critics of the current local-standard rule say it makes it more difficult to recruit experts because doctors are reluctant to testify against colleagues, particularly in small communities.

Norris, who handles defense cases as a private lawyer, said some defense lawyers also favor a statewide standard because they have to recruit experts for the defense too. The Senate did not alter the current "locality rule."