Proposed Changes to Tennessee Med Mal Laws Will Limit Patient Rights

August 29, 2010 (Press-News.org) There are two bills before the Tennessee legislature this term that could impose unfair limits on the rights of injured patients to bring medical malpractice claims against those responsible for harming them.

Higher Standard of Proof in Emergency Room Error Cases

Under H.B. 2543, emergency room patients who are injured by the acts of an ER doctor, on-call specialist or other ER department employee will have to prove the health care provider acted with gross negligence to succeed in a medical malpractice case.

Current law only requires injured patients prove ordinary negligence on the part of the health care provider. Ordinary negligence means that the medical provider failed to provide care in accordance with the prevailing standard of care for his or her profession or specialty and, as a result, injured the patient.

Gross negligence, however, is much more difficult to prove. The bill does not define gross negligence nor explain what a patient must prove in order to prevail under the heightened standard. In the past, Tennessee courts have described gross negligence as "arising from the conscious neglect of duty or a callous indifference to the consequences" or as a "negligent act done with utter unconcern for the safety of others."

In other jurisdictions that impose a similar heightened standard in medical malpractice claims against emergency room personnel and hospitals, gross negligence has been defined as extraordinary or outrageous conduct, the failure to exercise even the slightest of care and a gross departure from the ordinary standard of care.

Regardless of how the Tennessee legislature and courts eventually decide to define it, one thing is certain -- it will be much more difficult for patients to prove gross negligence than it is for them to prove ordinary negligence. If the bill becomes law, patients who have legitimate malpractice claims may be denied access to the courts because they will not be able to meet the gross negligence standard.

Proposed $1 Million Damages Cap

The second bill, H.B. 2887, seeks to place a $1 million cap on the aggregate amount of non-economic damages medical malpractice plaintiffs can recover. The bill defines non-economic damages as damages for:
- Pain and suffering
- Inconvenience
- Discomfort
- Physical impairment
- Mental anguish
- Disfigurement
- Loss of enjoyment of life
- Loss of society and companionship
- Loss of consortium
- Injury to reputation
- Punitive damages

Those in support of the two medical malpractice bills have argued that they are necessary measures to help curb the rising costs of health care in the state and decrease the number of frivolous claims filed against health care providers.

However, the need for these bills is questionable, particularly in light of recent statistics showing that the number of medical malpractice cases in Tennessee declined by nearly 60 percent from 2008 to 2009. This is due in part to a law that went into effect in October of 2008, which requires patients seeking to file a medical malpractice action to receive a certificate of merit from a medical professional before they may file the suit.

Moreover, since there is an average of less than seven jury awards each year hitting the $1 million or greater mark in Tennessee, capping non-economic damages is not going to lower costs, but instead is going to prevent patients with the most catastrophic injuries from recovering the full amount of compensation they are due for their serious injuries.

Conclusion

Medical malpractice cases are an important way to ensure that physicians and other medical providers meet professional standards of care. Efforts at the state and federal level to limit patients' rights to file malpractice suits ultimately only harm patients and decrease the overall efficacy of the health care system.

For more information on your rights to file a medical malpractice claim, contact an experienced attorney.

Article provided by Gatti Keltner Bienvenu & Montesi, PLC
Visit us at www.gkbm.com