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You should care about Jackson, Oli- ver, and their misnamed organization because they have targeted Tennessee as one of three states where they intend not to reform medical malpractice
law, but to replace it. What these two are doing in Georgia and Florida, they hope—with Nashville’s help—to repli- cate in Tennessee.
In a 2012 presentation to the Florida Medical Association, Jackson outlined the goals of our current medical malprac- tice tort system:
• Deterrenceofunsafepractices
• Compensationforinjuredpersons • Correctivejustice.
He got that part right. But Jackson then said that the current system does not work because it promotes “defensive medicine” in which providers supposedly over-prescribe from a fear of being sued. Rather than reaching for a scalpel, how- ever, his solution is to bring a chainsaw to the legal protections—and rights—you have, removing them root and branch. He calls for completely eliminating your constitutionally guaranteed access to a judge and jury and replacing such access with a politically appointed “Patients’ Compensation System.”
In March, State Senator Jack John- son (R-Brentwood) and Representative Glen Casada (R-Thompson Station) introduced SB 507/HR546, a bill that implements Jackson’s unconstitutional prescription for injustice and quackery. The legislation creates a mandatory malpractice liability system for all health- care providers, including hospitals and nursing homes. Johnson and Casada jus- tify their radical proposal on the grounds that “a study by Fierce Healthcare found that ‘defensive medicine’ accounts for one-third of all health-care costs.”
Where did Fierce Healthcare get its data? A survey of health-care executives like Richard Jackson conducted by Richard Jackson’s own company (Jackson Health- care)! That’s right: The politicians (and
lobbyists) are quoting data provided by the lobbyists and big medical to the media. The respected Journal of the Ameri-
can Medical Association, in contrast, estimates that only 13 percent of doctor- based medical expenses are “defensive.” JAMA’s research also concludes that the fraction is physician dependent—and not systemic to the profession. Some doctors are simply more cautious than others.
The more important question from the patient’s point of view and even financially to the bean counters should not be whether doctors sometimes test more than then they should, but what are the net outcomes? JAMA’s study concluded that although doctors vary widely in how much of their medical practice is “defensive,” the overall costs of treatment were comparable among those doctors who employed “defen- sive medicine” the most and those who did so the least: $1,700 versus $1,679, or only $21 difference per patient.
Jackson’s group claims, “The Patients’ Compensation System will lower health care costs by eliminating the practice of defensive medicine, saving up to $650 billion per year.” That astounding figure is about $2,100 per American citizen, but, if the average difference in cost is only $21 per patient as JAMA says, then each and every American would have to visit the doctor about 100 times per year for Jackson’s savings estimate to be correct ($21 x 100 = $2,100).
That Johnson and Casada repeat similar blatant exaggerations about the savings to Tennesseans shows how little they have examined their drastic legisla- tion before proposing it. Either they gulped down big medical’s phony elixir without bothering to read the label, or they are in on the con.
Ironically, supporters of SB 507 argue that they want to model the malpractice system on the workers’ compensation system Johnson and Casada’s party has been steadily dismantling. They claim that, as with workers’ compensation, the beauty of the new plan is it is “no-fault,” meaning the injured party does not have to prove who is to blame for the injury.
It doesn’t take much intelligence, however, to see through this decep- tion. When a worker is hurt on the job, he or she may have contributed to the accident through negligent behavior. In contrast, a patient under anesthetic on an operating table lacks all capacity to act with negligence.
The burden of legal proof in malprac- tice cases requires only:
• Negligence: The caregiver did some- thing that a reasonably good caregiver would not have done or did not do something that a reasonably good caregiver would have done.
• Proximate Cause: The caregiver’s negligence was the direct cause of any harm done to the patient.
• Injury: The plaintiff must prove the extent and scope of injuries received as a result.
Under SB 507, your legal burden as a patient remains exactly the same. Elimi- nating a fictitious need to prove fault is political cover for taking away your right to a jury trial, made explicit by both the U.S. and State of Tennessee constitu- tions. Rather than a panel in Nashville, local communities and local caregivers have the best sense of local standards of care. If elected representatives who need your vote to stay in office can sell you out to Big Medical, then its lobbyists will have an even greater influences with an unelected commission.
You have right to present your case to a jury of your peers, not a group of political appointees. SB 507 advances none of the goals of medical malpractice tort that Jackson himself lists. It is instead another instance of this General Assembly aiding powerful lobbyists while amputating a guaranteed constitutional right of ordi- nary Tennesseans.
Bruce Fox has practiced law for more than 30 years and has successfully represented clients at every trial and appellate court level of the Tennessee State Judicial System. Learn more at www.foxandfarleylaw.com.
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