Despite a series of tort-reform measures approved by lawmakers in recent years, Tennessee physicians say they need further protection — in the form of an amendment to the state constitution — against the threat of large awards in medical malpractice lawsuits.
The Tennessee Medical Association is asking legislators this year to start the process of amending the constitution to add language stipulating that the General Assembly can set caps on noneconomic damages in litigation.
It’s a process that would take three years, with both chambers needing to pass a resolution by simple majorities this year and two-thirds majorities next year before voters are asked to approve it in 2018.
Although the exact language wasn’t available last week, the resolution would state that an individual’s right to trial by jury is not abridged if there are limits placed on noneconomic damages.
Noneconomic damages generally refer to pain and suffering and mental anguish, for which a 2011 law capped awards at $750,000 per occurrence, or at $1 million in cases with catastrophic injuries or losses. The change would not apply to economic damages, such as medical costs and lost wages.
The proposed resolution comes in response to a recent preliminary ruling by a judge in Chattanooga judge that Tennessee’s cap is unconstitutional. The cap has not been tested before the state Supreme Court, however.
Maintaining the cap is vital to attracting and maintaining good doctors, TMA representatives say, especially since other states have imposed damage limits and other reforms.
“We want the best and brightest physicians,” said Yarnell Beatty, general counsel for the TMA. “If there’s a bad liability climate in Tennessee, they won’t come.”
The cap was one of a series of reforms approved by state lawmakers over the past eight or so years. Other measures include a requirement that plaintiffs notify caregivers before filing suit, thereby increasing the chances for a settlement, and a law stating that plaintiffs must certify that a medical expert has reviewed the case and found it to have merit.
The reforms have helped reduce the number of cases filed against physicians by 40 percent, Beatty said.
Another effect of the changes has been a levelling-off, or, in some specialties, a decrease, in malpractice insurance premiums, physicians say. “At least they’re stabilizing to a reasonable degree,” said Dr. Keith Anderson, a cardiologist with Sutherland Cardiology in Germantown.
But attorneys and some public-interest groups oppose damage caps, saying they infringe on the right of trial by jury. “It’s a violation of the Tennessee constitution and the U.S. Constitution,” said Memphis attorney Duncan Ragsdale, who has extensive experience litigating malpractice cases.
Asked about the proposal to amend the constitution to preserve the cap, he said, “I can’t imagine that the voters of the state of Tennessee would agree to that.”
Ragsdale and other attorneys say malpractice suits, and noneconomic damage awards, not only protect individual rights but induce doctors and other providers to improve their quality of care.
“I’ve sued the same doctor twice, in two different cases, and they paid off twice,” Ragsdale said. Without the malpractice suits, “he was going to do what he wanted to do. He didn’t care.”
Other opponents of damage caps say that even without them plaintiffs face foreboding challenges in pursuing malpractice suits, which are especially costly and difficult to litigate. They also point to a landmark 1999 study by the Institute of Medicine estimating that between 44,000 and 98,000 Americans die each year from avoidable medical errors.