Day on Torts
Many plaintiff’s lawyers from across the state received assessments from the Department of Commerce and Insurance for failure to report data concerning medical malpractice settlements and judgments received during the prior year. Many of the penalities approach $20,000 and, as one lawyer told me, the penality he has been assessed is greater than the fee he received in the case.
Some people have asserted that the reason plaintiff’s lawyers have to report this data is my fault. That is not accurate. Here are the facts.
Since 1986 I have pushed for mandatory reporting of medical malpractice verdicts and settlements data. Unfortunately, the state of Tennessee only recently began keeping data on verdicts in med mal cases, and most settlements are cloaked with a confidentiality agreement. Therefore, we had no good data to fight the constant whining by the medical community that there was a med mal litigation crisis.
Thus, after lots of hard work over many years by many people, a statute was passed requiring med mal insurers and self-insured providers to report data to the DCI. This data would be used to help the Legislature to determine whether the future claims of a litigation crisis were real or imagined. The reporting for these entities began in 2006 for the 2005 calendar year.
About a year after that legislation was passed either the med mal insurers or the DCI (I can’t remember which) had legislation introduced to require plaintiff’s lawyers to also report data regarding fees and expenses. I was involved in the TAJ Legislative Committee at the time and had no opposition to the legislation. It only seemed fair to me that if we were requiring the defendants and insurers of the world to report such data we should be required to do the same thing. This data would support the claims we were making on Capitol HIll that (a) the average fee in med mal cases was less than 1/3 (and it is) and demonstrate the substantial money that plaintiff’s lawyers invest in these cases.
The legislation was discussed at several TAJ meetings and the decison was made not to oppose the effort. The legislation was passed and become effective for cases settled and tried in 2006. I announced that that legislation was passed in this blog and sent out warnings about the filing deadlines, including this one on February 19, 2007 and this one on March 13 of 2008. The legislation was also announced in various TAJ publications and an announcement was sent out on the TAJ general member listserve in early 2007,
Thus, it is true that I pushed for reporting of data by insurers and providers. It is also true that I did not oppose the applicability of the reporting statute to plaintiff’ lawyers, mainly because I could think of no legitimate reason to argue that the reporting should be applicable to the defendants of the world but not to plaintiffs. But I did not propose the broadening of the reporting requirement and quite frankly I would have been very content to see it not apply to plaintiff’s lawyers (because it is more paperwork for our office, too). After the legislation passed, I did what I could do to give the information to those I came in contact with through this blog and at seminars.
The reporting statute has permitted us to learn that there are very few medical malpractice verdicts and settlements for plaintiffs in Tennessee, as reflected in this data for 2005, 2006 and 2007. I cannot guarantee that this data will help us win the upcoming med mal reform fight. I can tell you that the data tells anyone who will listen with an open mind that there is no need to cap judgments in med mal cases.
I feel sorry for people who have received a penalty for not reporting data. I think all TAJ members need to let the office know about their problem and the Association should help them work with the DCI to reach a resolution. The fact of the matter is that the penalty should be a minor one rather than $100 per day; such a penalty only means that the longer it takes the DCI to figure out that an innocent mistake was made the greater the penalty. This is not a health and safety issue that mandates that an additional penalty be assessed with the passing of each day.
To the extent that someone made in an error in completing the form, I cannot believe that the DCI would not work with the reporter and substantially reduce the penalty. The form is a little confusing and a good faith effort to comply should not result in punishment and certainly not in any significant punishment.
Finally, the reporting of data for 2008 will be due in sometime in early April, 2009. It would be a good idea to place a tickler on your calendar now. Here are the current regulations but you should know that they are being in the process of being revised and there will almost certainly be new regs applicable for the 2008 reporting year. I will let you know when the new regulations are issued and send a reminder of the 2009 due date for reporting 2008 data.
Finally, for those that are new to this blog, there is a new statute that requires giving notice of the intent to file medical malpractice cases (T.C.A. Sec. 29-26 -121) and mandates the filing of a certificate of merit (T.C.A. Sec. 29-26-122). Here is a link to the new statutes. The statutes are applicable to all Tennessee med mal cases filed after October 1, 2008.