On Wednesday, the editorial board of the Nashville City Paper observed that "the biggest fight of the year in the General Assembly may well be over the issue of capping medical malpractice awards. The doctors will be on one side and the lawyers on the other."
"Biggest fight of the year?" Well, that's probably a stretch, but the City Paper's editors are certainly right about the players. Medical malpractice "reform," in whatever shape, necessarily pits the denizens of the operating room with those of the bar. That's because of the way our system works. If a doctor hacks off your right arm when he is supposed to be removing your appendix, you can sue him or her in court and receive monetary damages, which is where the lawyer comes in.
Both sides in this debate offer up their arguments. The doctors think that malpractice insurance premiums should be brought under control, in turn increasing access to health care (not to mention increasing their profit margins) while the lawyers want everyone and his brother to have his day in court when something goes wrong (not to mention the nice contingency fees that go along with that). Each talks a good game about the "public interest," but it's really just one self-interested group versus another spouting statistics that cancel each other out. One wonders if it will all ultimately just come down to crass public opinion. In short, do people hate lawyers or doctors more?
This one's a toughie. On the one hand, lawyers make a lot of money from the misfortunes of regular folks and often act like pompous asses. On the other hand, doctors do these very same things, except they have nurses do most of their actual work for them.
Nevertheless, the Tennessee Medical Association, naturally, thinks lawyers lose the popularity wars. The TMA would like you to know that Tennesseans have no problem with sticking it to the trial bar, with a majority of Tennesseans in a survey sponsored by TMA saying that trial lawyers get too big a portion of jury awards, which, by the way, are also too large, according to the same survey.
Survey results in hand, Russ Miller, Senior Vice President for the TMA, says that Tennesseans "believe access to physicians and certain health-care services are at risk unless the General Assembly acts to reform the state's medical liability statutes." And, indeed, 72 percent of Tennesseans think the cost of medical liability insurance is adversely affecting the practice of medicine in the state.
The TMA's proposal to address this menace has two parts. First, it wants to cap non-economic damages at $250,000, as has been done in California. Second, the TMA calls for lawyers' fees to be capped at one-third of total damages with a sliding scale that drops as damages increase. In other words, let's stick it to the lawyers.
Mary Littleton, Governmental Operations Specialist for the Tennessee Trial Lawyers Association, is naturally skeptical, pointing out that the TMA cannot point to any specific data demonstrating the existence of outrageous jury awards in Tennessee medical malpractice cases. This, she says, is because Tennessee juries are pretty conservative, something that has been reflected in our election returns. That's true enough: states that send heart surgeons to the U.S. Senate aren't likely to be havens for trial lawyers who go after doctors.
But will these conservative Tennesseans go for what the TMA is peddling? The betting here is no, at least not right now. For one thing, the TMA seems to lack a prominent example of just how the tort system has really done Tennessee doctors dirty, a med-mal version of the McDonalds'-coffee-in-the-lap case of a number of years back. Without any real, dramatic examples of Tennessee doctors unfairly taking a whipping in the judicial system, it will be difficult to rouse sympathy among the masses.
For another, the TMA can bandy about its survey all it wants to, but survey results are not truth. Just because the majority of public thinks something is true doesn't necessarily mean it actually is. And, indeed, the City Paper editorial mentioned a study calling into question the fundamental premise behind the TMA's reform proposal: that malpractice caps will help to keep insurance premiums down.
Finally, the TMA needs some message discipline, since it doesn't seem to know what it wants with regard to punitive damages—damages that do not compensate plaintiffs so much as they punish defendants for egregiously bad behavior. In civil actions, damages come in two basic forms. The first and most typical are "economic damages," medical expenses, lost wages and the like. The second are "non-economic damages," which are the ones that are harder to calculate specifically, such as the ever-popular "pain and suffering," a kind of a catch-all category for how much it hurt you to get your arm lopped off, and "loss of consortium," a polite way of saying sex with one's significant other. (We will refrain from the obvious "missing arm/loss of consortium" one-liner here. Well, obvious to us anyway.)
A discussion last month with representatives of the TMA seemed to indicate that it was including punitive damages under the all-inclusive "non-economic damages" cap, meaning, in effect, that punitive damages would be nonexistent in Tennessee med-mal cases. Miller, however, indicated in an interview this week that, in fact, punitive damages were a "totally separate issue" from the non-economic damages and, as such, were apparently not going to be subject to the cap. This seems to mean that, at least theoretically, the patient in our above appendectomy-gone-awry example could sue for forty-umpteen kajillion dollars in punitive damages while being limited in rather arbitrary fashion to a paltry $250,000 for his pain and suffering. That really doesn't make a lot of sense, and it suggests that this whole thing may not be totally thought through.
So, even though there may be superficial support among the public for the TMA's proposal, it will likely be torn to shreds once the trial lawyer lobby gets a hold of it. As for the rest of us, we can just sit back and enjoy watching the folks on both sides beat each other's brains in. After all, why root for just one of them when you can root against both?
