Nov 30

An end to malpractice?

Originally published in the Nashville Post on November 29, 2016



Health insurance premiums are skyrocketing in Tennessee, but one organization may have a partial solution — end medical malpractice lawsuits.


January will mark the second time Alpharetta, Georgia-based nonprofit advocacy group Patients for Fair Compensation will introduce legislation in Tennessee (via sponsors Sen. Jack Johnson and Rep. Glen Casada, both Williamson County Republicans) to ban malpractice lawsuits, both minor and major.

“We’ve got a healthcare system from an affordability standpoint that’s just unsustainable,” says Wayne Oliver, PFC executive director. “It’s time for some kind of drastic action.”

Oliver’s plan would create a patients’ compensation system for those who feel they had received injurious medical treatment. Instead of filing a lawsuit, a patient would apply for compensation based upon his or her injuries.

“The existence of the litigation system causes doctors to do some irrational things they know are not necessarily in their patients’ best interests,” Oliver says. “They know [the things] add no diagnostic value to the patients and are simply ordered to protect from the potential of being sued.”

Oliver cites a Gallup study noting one in four health care dollars is spent on “defensive” medicine, estimating it costs the U.S. health care system $650 billion annually. Remove the threat of malpractice, he says, and you eliminate that unnecessary spending, while minimizing insurance costs.

Modeled after worker’s compensation and not dissimilar to arbitration panels, the plan is similar to those used in other countries, Oliver says. Compensation claims would be funded by a pool of annual fees from every state physician.

Oliver says a licensed physician unconnected to the case would review a patient’s injury claim to assess sufficient evidence to move forward, at which point “three physicians in the same specialty practice” — i.e., three orthopedists if the patient was filing over a mishap during hip surgery — would then study the redacted case file and determine if the claim is legitimate and, if so, the payout.

However, according to the Johnson and Casada legislation (called the Insurance Costs Reduction Act ), an administrative law judge would make that first decision. That judge would be appointed by a board overseeing the entire patients’ compensation system (which would itself fall under the aegis of the Tennessee Department of Health). Appointed by the governor, the lieutenant governor and the speaker of the House, the 11-person board would consist of at least three physicians, two patient advocates, one business executive, one hospital administrator, one accountant and one lawyer — not exactly neutral oversight.

Moreover, the legislation states, “If the judge determines that the medical treatment conformed to national practice standards for the care and treatment of patients, then the application shall be dismissed and the practitioner shall not be held responsible for the applicant’s injury.”

And if a patient is eventually found worthy of compensation, it “shall be offset by any past and future collateral source payments” — i.e., any insurance or disability payments.

Still, Johnson says that whatever the wording, the bill is needed.

“We’re practicing too much medicine in courtrooms and not in our hospitals,” says Johnson, who believes he has the votes to win Senate approval.

But House Democratic Caucus Chair Rep. Mike Stewart says the legislation — PFC is also pushing similar measures in Florida and Georgia — is a terrible idea.

“Sadly, I don’t anymore make predictions about whether really bad bills will progress because, unfortunately, we’ve seen under the Republican supermajority, they often do,” Stewart says. “But … this particular bill — which is designed to take away the right to trial by jury — is unconstitutional under the Tennessee constitution. The founders of this state, the makers of our constitution, had a very strong belief that the citizens should ultimately make these important decisions. So the right to a jury trial is extremely strong.”

Johnson says he has had preliminary discussions with Attorney General Herb Slatery’s office about the legislation. If it begins to advance, he will ask for an official opinion as to its constitutionality.

Understandably, the legal community opposes the legislation. But last session, the Tennessee Medical Association also raised concerns about it. During a November 2015 Senate Commerce Committee hearing, TMA general counsel Yarnell Beatty questioned PFC’s statistics and called the system “speculative.”

Reached by email before press time, Beatty says he still opposes the legislation.

“Tennesseans do not want or need an unproven healthcare liability system,” he says. “Our present system is working well and is fair and transparent. Tennessee has significantly reduced frivolous lawsuits while maintaining accountability for providers who are negligent. Throwing out our current system in favor of an untried and unproven experiment will be costly and cause undue stress on our medical system, both for patients and providers. And there is no guarantee of cost savings or any other benefits.”



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