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Focus on the Law: Tort Reform

By Sharon Frankenberg,
Attorney at Law

The topic of tort reform does not generate the intense, passionate debate that it once did.  The medical malpractice crisis of the 1990s that was going to drive all physicians out of business never quite materialized.  Babies are somehow still being delivered by obstetricians.   Medical schools are still attracting applicants.  Supply and demand in the insurance market has met the need for malpractice coverage by medical providers.  Nonetheless, Tennessee has made major legislative changes in the last few years that continue to reform our tort system for better or for worse.

In 2008 and 2009 the state legislature passed laws changing how medical negligence claims may be brought.  A most significant change is that a plaintiff must give a detailed notice 60 days before filing a lawsuit against a health care provider.  The notice must identify the claimant, the patient, the claimant’s attorney, and all providers being sent the notice.  The notice must include a HIPPA compliant medical authorization which allows the health care provider to obtain the patient’s complete medical records.

Upon filing a lawsuit where expert testimony is required, a certificate of good faith is required to be filed with the original complaint.  The plaintiff or plaintiff’s counsel must certify that they have consulted with an expert who is competent to express an opinion in the case.  The plaintiff must have a signed medical statement in the file that there is a good faith medical basis to maintain the lawsuit.

These changes have resulted in fewer medical malpractice suits being filed.  According to statistics compiled by the Administrative Office of the Courts, there were 583 medical malpractice suits filed in the circuit courts in fiscal year 2006-2007.  In fiscal year 2011-2012, that number had dropped to 369.

More recent tort reform has taken place with the passing of the Tennessee Civil Justice Reform Act.  This act places caps on noneconomic damages (“pain and suffering”) at $750,000 per each injured plaintiff and $1 million for a catastrophic loss or injury.  Catastrophic injury includes paraplegia, quadriplegia, amputation of both hands, both feet, or one of each, third degree burns to 40% or more of the body or 40% or more of the face.  The $1 million cap for noneconomic damages also applies for the wrongful death of a parent leaving a surviving minor child where the parent had custody or visitation.   These caps do not apply if the defendant is found to have “intentionally concealed, altered or destroyed records with the purpose of avoiding or evading liability.”   Nor does it apply if the defendant had specific intent to inflict serious injury or if the defendant was under the influence of alcohol or drugs that caused his or her judgment to be substantially impaired.

The Tennessee Civil Justice Reform Act also puts a cap on punitive damages, the damages awarded by juries to punish the defendant.  Punitive damages are limited to 2 times the total amount of compensatory damages or $500,000, whichever is greater.  Compensatory damages are the proven out-of-pocket losses like medical bills and lost wages.  Also buried in this act is the prohibition against disclosing the limitation on the amount of noneconomic damages to the jury.  The jury may decide to award a figure in excess of these caps but the judge will then reduce it to the statutory amount.  This reform further limits the jury’s discretion in compensating injured parties.

Obviously this article does not cover every issue which might arise.  You should always contact an experienced attorney to get advice and assistance with your unique situation.

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