Today’s Editorial from the

Here is the lead editorial in today’s Tennessean:

Beware of quick fix on malpractice reform

It’s a fact that Tennessee physicians, particularly those in some specialty groups, have to pay high rates for malpractice insurance. Those high premiums discourage young doctors from pursuing some specialties and drive practicing doctors out of some geographic areas.

But although the high malpractice insurance rates can be documented, it is not clear that state malpractice reform now being pushed in Tennessee is an effective answer for the problem. And if the reform is the wrong response, Tennessee citizens will be hurt.

Last week, the American Medical Association claimed Tennessee is in a “medical liability crisis,” and that the soaring malpractice premiums in Tennessee leave some communities without a residing orthopedic surgeon or obstetrician.

The AMA’s stern assessment of malpractice in Tennessee sets the stage for another attempt to pass malpractice reform in the General Assembly. The proposed legislation would cap non-economic damage at $250,000. It would also initiate a sliding scale payment for attorneys to assure that most damages go to the injured person, and it would require that every malpractice lawsuit be certified by a medical expert.

The data from the state do not seem to reflect a malpractice crisis in Tennessee. The Tennessee Department of Commerce and Insurance reported last October that in 2004, Tennessee had six malpractice judgments totaling $1.9 million. Insurance companies wrote premiums totaling $327 million, and 444 claims were settled by insurance companies totaling $108 million. According to the report, 81% of malpractice claims in Tennessee resulted in no payment.

Having a medical expert screen a malpractice claim to see if it has merit seems like an idea worth pursuing. Frivolous claims cost time, money and clog up the court system. But a flat $250,000 cap on non-economic damages for all instances of malpractice, no matter how egregious, is needlessly arbitrary. Juries who hear all the facts of a case are far better equipped to arrive at a fair judgment.

As this debate engages Tennessee legislators, they need to remember that their first duty is the protection of average citizens. Would they be willing to explain to a constituent that her breast, or her leg, or her ability to reason is worth no more than $250,000?