NASHVILLE — Fearful that Tennessee courts could eventually strike down a 2011 law capping jury awards in medical malpractice lawsuits, doctors plan to press legislators to protect the statute through amending the state's constitution.
The Tennessee Medical Association wants lawmakers to put before voters new constitutional language clarifying that the General Assembly has authority to set caps on noneconomic damages such as pain and suffering in cases involving medical malpractice liability.
The group's would require persuading lawmakers in the current GOP-dominated 109th General Assembly to approve the proposed amendment in 2016 and then getting their successors in the 110th General Assembly to pass it by a two-thirds majority.
If it wins approval from lawmakers, it would go before voters on the 2018 ballot to decide.
"The General Assembly needs to act now to prevent us from going backwards on the issue of a noneconomic damages cap," Dr. John Hale, president of the Tennessee Medical Association said in a recent statement. "The cap fosters growth in Tennessee's health care industry by cutting back on frivolous lawsuits and the costs that come with them.
"I'm confident Tennessee voters will support it if given the chance to have their voices heard," Hale added.
But a funny thing is happening on the doctors' way to the legislature. They aren't the only ones with ideas about curbing costs.
The Alpharetta, Ga.-based nonprofit advocacy group, Patients for Fair Compensation, is calling on lawmakers to yank malpractice suits out of the courts entirely and put them under a first-of-its-kind Patients' Compensation System.
Patients for Fair Compensation says its proposal is similar to the workers' compensation system for helping injured workers. It would create an independent panel, appointed by Republican Gov. Bill Haslam as well as the Republican House and Senate speakers. The panel would retain physicians to serve on panels. They would affix specific costs on physician errors in treating patients.
Proponents say the result would slash billions of dollars now spent on lawsuits and "defensive medicine" practices by physicians seeking to protect themselves in court.
The group presented its plan Tuesday before a study panel of the Senate Commerce Committee where Chairman Jack Johnson, R-Franklin, is sponsor of the bill. It was introduced earlier this year.
"We were intrigued by the idea," said Johnson, whose sponsor in the lower chamber is House Republican Caucus Chairman Glen Casada, R-Franklin. "When you look at the health care dollar that consumers spend in the state of Tennessee how much of that dollar is going to defensive medicine and litigation costs, those are the kinds of questions that raise my interest."
But Johnson acknowledged he is already in discussions with state Attorney General Herbert Slatery over whether the bill meets constitutional muster.
The concept is generating questions and opposition from the Tennessee Medical Association as well as State Volunteer Mutual Insurance Company, which provides medical malpractice insurance for some 70 percent of the thousands of doctors practicing in Tennessee.
During his presentation, Wayne Oliver, executive director of Patients for Fair Compensation, described a "broken tort system" and cited figures from Jackson Healthcare that about $1 out of every $4 dollars spent on health care actually goes toward litigation and defensive medicine.
The for-profit Jackson Healthcare is headed by Richard L. Jackson, who is also chairman of Patients for Fair Compensation. The company provides medical personnel and IT services to hospitals and physicians' groups.
Oliver called the group's proposal a "bold innovative concept that really changes the dynamic within health care generally and within medical malpractice specifically. We are talking about compensating patients for medical injuries."
Outlining what he described as a "no-fault" administrative model for addressing medical injuries similar to workers compensation, Oliver told the panel "this is not about compensating patients for bad outcomes" and noted that some illnesses and problems simply can't be cured or fixed. Patients who are "legitimately" injured as a result of treatment would be helped.
He said Tennesseans incur some $13 billion in costs annually as a result of defensive medicine. Some $6.1 billion of that affects Tennessee taxpayers through higher costs in the TennCare Medicaid program as well as state employees, Oliver said.
"We're not talking about the practice of medicine, we're talking about defensive medicine" where doctors seek protection from potential lawsuits, Oliver said.
Responding to questions posed by Rep. Joe Pitts, D-Clarksville, Oliver said the appointed board would name an executive director to select physicians to serve on the panels as well as staff.
Yarnell Beatty, a vice president and general counsel with the Tennessee Medical Association, challenged the group's figures and other assertions. Beatty said Tennessee's current law, which was an initiative of Haslam's, has resulted in a 40 percent drop in medical malpractice lawsuit filings.
Moreover, he said, it's resulted in the "stagnation" of what had been hefty annual increases in malpractice insurance premiums.
Yarnell said the doctors' organization had a variety of "threshold concerns" about the proposed Patients' Compensation System. That included the group's actuarial numbers, which he said lawmakers should carefully examine in detail. He also noted no state in the nation has adopted the model, which he called "speculative."
And and State Volunteer Mutual Insurance Company officials also questioned Oliver's assertion the program would allow physicians who pay for harm they've caused to avoid having that reported to a national data base.
Meanwhile, State Volunteer Mutual Insurance Company officials questioned what happens if the fund runs dry in any given year, wanting to know if payouts to harmed patients are reduced or disappear or if doctors wind up coughing up more money.
Contact Andy Sher at email@example.com, 615-255-0550 or follow via twitter at AndySher1.