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Medical liability reform, coupled with arresting the number of frivolous lawsuits filed against physicians, is again a top agenda item for the Tennessee Medical Association (TMA) in 2008. As for another organization representing clinical practitioners, the Tennessee Nurses Association (TNA), educating the next generation of nurses is also high priority.

TMA will be putting its considerable political muscle behind passage by the state House of Representatives of a meritless-lawsuit bill that passed the Senate in 2007 by a 30-0 vote. “We believe that 30 senators from both sides of the aisle knew what they were talking about, and that this might be an opportunity to address something that everybody agrees upon,” said Gary Zelizer, TMA lobbyist. The Senate bill essentially requires plaintiffs to file a Certificate of Good Faith that the lawsuit has merit, that they can demonstrate their ability to prove the existence of medical malpractice. The certificate must be filed within 90 days after filing a complaint in any medical-negligence action.

“We’ll be pushing passage of the Senate version in 2008 and, at the same time, pushing to extend the life of the Commerce and Insurance med-mal annual reporting.”

In 2004, the General Assembly passed legislation requiring insurance companies and uninsured healthcare professionals and facilities to report medical-malpractice claims data to the state Department of Commerce and Insurance. The requirement sunsets this year unless the General Assembly takes action to continue the program. “Regardless of whether the data is favorable or not favorable to healthcare providers, it’s appropriate for decision-makers to have the best possible information they can,” Zelizer said.

Last November, the department released the 2006 data, revealing that insurance companies wrote more than $345 million in medical-malpractice premiums in the state. According to the submitted claims information, Tennessee trial courts issued six med-mal judgments totaling nearly $5 million, while more than 2,973 med-mal claims were resolved – 85 percent of them resulting in no payment of damages. The other 15 percent resulted in payments totaling $100.2 million. Defense expenses totaled $67 million. Insurance companies reported that financial reserves established in 2006 for med-mal claims totaled $795 million, while about 5,430 open med-mal claims were identified as of the end of the year.

Also related to med-mal lawsuits, Zelizer said TMA has been “investigating an odd twist in what’s admissible in civil actions.” In most if not all states, an expression of sympathy or apology by a healthcare provider is inadmissible, he explained.

“But the same does not accrue to an expression of fault,” he continued. “So the provider who says, ‘I’m sorry that surgery didn’t turn out the way we hoped it would,’ is inadmissible. Yet in those cases where the provider knows for a fact that he or she has done something that has caused harm, if that provider says to that patient or that patient’s family, ‘I made a mistake,’ that expression in fact could be used in a civil action against the interests of the provider. That’s a disincentive, needless to say.”

While healthcare providers are responsible for informing patients and patients’ families of what has occurred, defense attorneys representing healthcare providers today discourage their clients from open communication – and this is why, Zelizer said. “I know I heard on more than one occasion in the 2007 session that we want healthcare providers to communicate with their patients, and we don’t disagree,” he said.

TMA’s House of Delegates, and subsequently its legislative committee, recently agreed to file legislation in 2008 that would require Tennessee physicians performing Level II office-based surgery to register and report unusual incidents to the state. Level III surgery is already reported. Levels are based on anesthesia required for the surgery: Level III patients couldn’t evacuate the building unaided in a emergency, while Level II patients are more alert. “We don’t want to get to the point that any and every procedure that a physician does in his or her office has to be reported to the state,” Zelizer said. “But we have had some bad outcomes with Level II surgery, and that’s the reason the House of Delegates did approve the resolution to require unusual incident reporting.”

When it comes to public health, TMA is concerned with increasing numbers of reports from obstetricians and pediatricians that the use of illegal drugs or the over-utilization of prescribed drugs is increasing in prenatal patients. Zelizer said anecdotal reports from a few providers in McMinn and Knox counties reveal that “anywhere from one-fourth to two-fifths of women who deliver babies in their hospitals are either using illegal drugs or abusing prescribed drugs.” TMA is formulating a plan of action on this front, he said.

When it comes to Tennessee’s nurses, educating enough nurses to do the job and ensuring that the state’s education system can support those students is the dual priority of the TNA, according to Laura Beth Brown, installed in November as the 2008 president. Brown, president of Vanderbilt Home Care Services, will serve a two-year term.

“We have an obligation to continue our work with Gov. Phil Bredesen to fully fund the Graduate Nursing Loan-Forgiveness Program in 2008,” Brown said. The scholarship program forgives a portion of a nurse’s loan “for each year of continuous full-time employment in a Tennessee nursing education program in a teaching or administrative capacity,” according to the law.

Another TNA priority for 2008 is improving Tennessee’s ratio of registered nurses to students. The American Nurses Association standard is one RN to 750 students. Tennessee’s is one nurse per 3,000 students.

“It’s education, it’s workplace advocacy,” Brown said. “It’s really trying to look at what makes the profession better, but also what makes the health of Tennesseans better.”



January 2008

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