Tort reform and the Truth about Tennessee's civil justice system

There's No Substitute for Experience

Certain groups are working hard at taking away the constitutional rights of Tennesseans. Although Tennesseans are trusted to determine whether a criminal defendant should face life or death, certain groups don't trust Tennesseans when it comes to the amount of harms and losses a corporation found guilty of wrongdoing has caused.One such group is the “Tennessee Center for Policy Research” headed by Justin Owen.It claims it is a non-partisan 'think tank.'I guess anyone, or any corporation, can claim anything it wants to, but that doesn't make it true.Mr. Owen wrote an op-ed for the Tennessean last week which is, at best, misleading. I am going to print that op-ed piece here but follow up each paragraph with the Truth.

From the Tennessee Center for Policy Research:
In 2009, a Putnam County resident was awarded more than $19 million from injuries sustained in an auto accident. Less than 3 percent of the award went to compensate the plaintiff for direct medical bills arising out of the accident. The remaining was for “non-economic” damages unrelated to actual injuries.

RESPONSE: This matter involved a 55-year-old man who is now a quadriplegic as a result of the negligent conduct of a defendant. The health insurance company refused to pay any bills. So, a lawsuit had to be filed and a hearing was held in front of a judge, not a jury. The negligent defendant did not even show up. From the amount of the judgment, only $101,000 was collected for the life-long care needed for this catastrophic injury, who now resides in a long-term care facility.

While a higher-than-average judgment in our state, it represents a growing trend in our civil justice system. Larger and more frequent awards are handed down but plaintiffs are receiving less and less. Nationwide, just 42 percent of a lawsuit award goes to the plaintiff, and less than half that is for actual injuries. The rest is eaten up by administrative and court costs, while plaintiffs' attorneys pocket a significant portion for themselves.

RESPONSE: This 'judgment' does not represent a growing trend in our civil justice system. Over a decade ago, there were 1000 + trials per year. Last year there were 384 jury trials. The amount of verdicts over 1 million dollars has remained virtually unchanged the past 5 years. The number of lawsuits filed is going DOWN, not up. The number of lawsuits filed in Tennessee in 2010 was lower than any of the previous 5 years. As to the rest of Mr. Owen's comments - he gives no cites, so I have no way of addressing them. But, if insurance carriers and businesses would do right from the beginning and pay valid claims, injured Tennesseans wouldn't have to turn to lawyers.

The Tennessee Center for Policy Research recently conducted a study into the potential impact various lawsuit reforms could have on our state's economy. The study found that lawsuit abuse harms those directly involved, as well as every Tennessean, because of the system's ripple effects on costs of insurance, goods and services and the ability to do business. States that have lawsuit abuse reform have experienced tremendous economic improvements. Reforms are saving the average Texas family $1,078 a year, and businesses have invested nearly $2 billion in Mississippi.

RESPONSE: Be very careful here. Let's look at what is going on in Texas and Mississippi. First of all, Texas. Texas currently faces a $25 billion deficit and according to the U.S. Census Bureau, contains the nation's highest rate of uninsured citizens - 24.5 percent. Does that sound like a state we want to be like? Let's look at Mississippi. Mississippi's unemployment rate is at an all time high, and it is ranked 46th in the nation for business climate. If Tennessee adopted what Mississippi did, we would have a state income tax (no thanks) and go BACKWARD on our business climate. It is intellectually dishonest to claim that tort reform is what leads to economic improvement. For each of the past 6 years, Tennessee has ranked in the top 5 in the country with regard to our business climate. Tennessee has done an excellent job of promoting jobs while protecting the constitutional rights of its citizens. Just how trustworthy is the alleged 'study' that they conducted? Furthermore, why would we want to become like Mississippi and be ranked 46th?

If Tennessee made similar reforms, the state could produce an additional $2.3 billion in the health-care, durable goods and retail trade industries. This increased production could lead to as many as 30,000 new jobs across the state every single year. Without question, curbing lawsuits leads to job creation.

Notice the wording here. Is Mr. Owen saying that it WILL produce more jobs? No. I've italicized the word for you - “could.” Anyone, and any group can claim something “could” happen. But does that mean it will happen? No. What do we know WILL happen if big business has its way is that the constitutional rights of Tennesseans will be severely limited. It will be harder to hold corporations and, for example, tractor-trailer drivers and companies responsible for its careless conduct.

Reforms also could bring tremendous benefits to our health-care system. Rural doctors are more prevalent in states with reform. Currently, numerous counties in Tennessee -- particularly, rural counties -- suffer from a shortage of doctors. Forty-two counties lack an ob/gyn, which contributes to high infant mortality, while a staggering 47 counties do not have an emergency room physician. Lawsuit abuse reform could result in five or six counties finally obtaining the ER physician they desperately need, which could literally mean the difference between life and death.

This paragraph is wrong on so many levels, it's difficult to know where to start. Do you get the impression from this paragraph that 47 counties don't have emergency room coverage? What an outrageous statement. 80 counties have hospitals with Emergency Rooms open for business 24/7. The other 15 counties do not have Emergency Rooms because they don't have hospitals and likely never will. Is this because of lawsuits? No. It's because of the extremely rural aspect of the county. Of the 80 counties with Emergency Rooms - every single one of those Emergency Rooms, EVERY ONE, is overseen by a physician who holds himself or herself out as being competent to handle the Emergency Room for that particular hospital. Why did Mr. Owen make such a misleading statement regarding his “;staggering number”? Was it for shock value? Doesn't this type of misleading statement make you question the credibility of the other “information” about what jobs “could be”created if Tennessee passes tort reform? Come on, Mr. Owen. Let's be intellectually honest. I noticed Mr. Owen didn't mention a single county that had a hospital where the hospital felt like its Emergency Room was substandard. What is Mr. Owen hiding? But that's not all. What about OB/GYNs? Yes - there are certain counties that don't have OB/GYN coverage. Why not? Because they don't have hospitals! Also, in some rural counties with hospitals, there aren't enough births per year to justify an OB/GYN unit. Perhaps the thing that completely destroys Mr. Owen's implication that tort reform and capping the amount of damages that could be awarded to help care for a brain-damaged child would increase the number of counties that have OB/GYNs is to look at what happened in Texas after it passed the type of reform Mr. Owen is advocating. Prior to passing tort reform and caps, Texas had 152 counties without and OB/GYN. Today, four years later, Texas still has 152 counties without an OB/GYN. You see, caps have NOTHING to do with bringing in more ER physicians or OB/GYNs into a particular rural community.

Another costly problem that stems from lawsuit abuse is defensive medicine. Doctors routinely order unnecessary tests and procedures to prevent getting slapped with a lawsuit. Nationwide, defensive medicine costs $124 billion a year, consuming a whopping 8 percent of personal health-care costs and making health insurance unaffordable for millions. Simple reform measures could give 67,000 Tennesseans affordable health insurance.

This is a myth. Pure and simple. But, don't take it from me, take it from the GAO and the COB (Congressional Budget Office) - as both of these organizations long ago rejected this assertion. The CBO found “no evidence that restrictions on tort liability reduce medical spending” and concluded: “In short, the evidence available to date does not make a strong case that restricting malpractice liability would have a significant effect, either positive or negative, on economic efficiency.”

Finally, lawsuit abuse reform offers a jump-start to our state's economy. Tennesseans would reap the benefits of reform at a time when they need it most. Our uninsured neighbors, our friends living in doctor-less counties, and our small-business owners that provide quality jobs and goods should no longer be plagued by an unfair civil justice system.

As you can see from what I have written, there is no data to support Mr. Owen's contention that tort reform would jump-start our state's economy. Also, it is Mr. Owen who is being unfair to Tennesseans by not giving us the truth about our civil justice system. Did you happen to notice that not one time did Mr. Owen mention any judgment from a Tennessee jury that was “unfair.” Not once. Yet he blames pretty much everything on an “unfair civil justice system.”

With our economy in dire straits, Tennessee needs more jobs, not more lawsuits.

Well, this is a profound statement. But, seriously, at what cost to the people injured thru the carelessness and neglect of business and corporations. The number of lawsuits has gone down, not up. Malpractice filings have gone down, not up. Premiums have gone down, not up. And Tennessee is ranked number 2 in the country in having the best business climate. We do need more jobs, but Tennesseans also deserve to be able to have Tennessee Juries hold those corporations that decide to take short cuts, and break laws, which needlessly and catastrophically injure people fully accountable.

In conclusion, I feel confident Mr. Owen knows the real truth about medical malpractice claims in Tennessee, but he didn't share that truth with you. I suspect he hopes you, the reader, don't know the truth and won't find out the truth. So, let me briefly share with you the truth. In 2008, I was President of the Tennessee Association for Justice, formerly known as The Tennessee Trial Lawyers Association. We listened and recognized that too many lawsuits were being filed against health-care providers and something needed to be done. We worked with Senators Mark Norris and Doug Overbey - both Republicans - on a bill to address this problem. We also worked with the Tennessee Hospital Association and the Tennessee Medical Association. Legislation was passed that properly balanced what needed to be done prior to a lawsuit being filed in a medical malpractice case (certificate of good faith - that the records had been reviewed by a qualified physician who found that the health care provider had fallen below the standard of care and that injuries occurred as a result of the negligent conduct) while still preserving an injured person's right and a Tennessee jury's right to hold the negligent provider fully accountable for the injuries caused by negligence. Since that bill was passed the following has occurred in Tennessee:

  • Medical Malpractice Lawsuits have dropped by 44%
  • Insurance Premiums charged by the SVMIC - the largest provider of malpractice insurance in Tennessee - has DECREASED by 23%.The average premium paid by an Internist insured by SVMIC is $7,076 per year, or $589 per month - probably less than what a large number of physicians spend on a monthly car payment.

Real reform. Real Results. True facts. Why didn't Mr. Owen mention any of this? Because it doesn't fit his agenda.

Don't be fooled by these “tort reform” outfits that don't shoot straight with you. Let your representatives know how you feel about the attempts of organizations pushing tort reform and their agenda to take away the constitutional rights of Tennesseans.

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