Theatrics Aplenty as Senate Committee Debates Tort Reform

On a day when the House Judiciary Committee passed Gov. Bill Haslam’s tort reform bill, it was predictable enough that the theatrics on the bill in a Senate committee would come from actor/lawyer/lobbyist Fred Thompson.

Thompson’s booming voice and folksy approach did, in fact, make for an attention-grabbing meeting Tuesday afternoon that went into the evening. But it wasn’t so predictable that Sen. Brian Kelsey, R-Germantown, would be the one to turn the tables on Thompson in a “gotcha” moment that Thompson himself readily conceded.

Thompson basically had the audience in his hands, carrying on about who gets to decide what the damages are when people like the ones he brought into the meeting Tuesday are harmed. Lawmakers who favor tort reform could only look stone-faced as Thompson had a series of victims stand as he told their stories.

But the debate continued, and it gradually became clear that Thompson wasn’t the only one who came prepared.

At one point, Kelsey pointed to improvements in Texas after it enacted tort reform. He quoted from an article that said Texas was losing doctors, that rising malpractice insurance rates were creating a crisis, that “out-of-control medical malpractice lawsuits have been a problem in many parts of the country,” that Texas capped non-economic damages and that other states are considering tort reform legislation to stop the loss of doctors to Texas.

“Does that sound familiar?” Kelsey asked Thompson.

Thompson said many factors figure into the issue.

“It seems to me that if it’s good for Texas it’s good for Tennessee,” Kelsey said, and then he softly revealed, “I have to agree with the author of this article in 2007 — which was Sen. Fred Thompson.”

Sen. Stacey Campfield asked Thompson if it was true he wrote the article.

“I must have,” said Thompson, who then told Kelsey, “I will give you a ‘gotcha’ on that, but I’ll be back next week, and we’ll talk about it some more.”

The article Kelsey referred to was from Townhall.com, written by Thompson on June 21, 2007, under the headline, “A Federalist Approach to Malpractice Abuse.” It urged advocates of tort reform who believe “it’s the patients who suffer the most” as a result of doctors being driven out by unwarranted lawsuits to focus their energies on changing state laws.

“In the past, those who want to solve this problem have tended to ignore our Federalist tradition,” Thompson wrote. “They’ve driven right past their state houses to their airports and flown to Washington to ask for national legal remedies. Fortunately, now we’re seeing that states can take effective action themselves.”

Theatrics aside, the sobering issues of whether it is appropriate and equitable to cap the amounts of damages victims in civil cases can be awarded by a jury, or whether Haslam’s tort reform initiative will really create the number of jobs its proponents say it will, were left unsettled and the legislation up for a vote another day.

Sen. Mae Beavers, R-Mt. Juliet, chairman of the Senate Judiciary Committee, made it clear early in the hearing over SB1522 that there would be no committee vote on the bill Tuesday. The legislation was deferred one week.

But there was no shortage of debate.

The Senate committee served as the upper chamber’s formal introduction to Haslam’s legislation in its most recent form. Unlike the original version, the bill before Senate members now is the same model as in the House, where Haslam’s bill calls for non-economic damages in civil cases to be capped at $750,000 and $1 million in “catastrophic” cases.

The governor’s bill will be closely followed in the Senate, since Lt. Gov. Ron Ramsey has judged that his colleagues are more prone to prefer the rigid $750,000 caps in the original bill rather than the negotiated version that allows for greater damages in more serious cases.

The bill is formally carried by the Republican leaders in each chamber, Sen. Mark Norris, R-Collierville, in the Senate and Rep. Gerald McCormick, R-Chattanooga, in the House.

Thompson said the trend is not quite what tort-reform advocates suggest.

“Malpractice cases in Tennessee are going down. Malpractice premiums in Tennessee are going down. Malpractice premiums are lower in Tennessee — I think that I can say this correctly — than in any other adjacent state,” Thompson said.

He was supported by Nashville lawyer John Day, who told Kelsey, “This argument that we’re going to change the nature of health care in this state if we limit the rights of patients is just plain bunk. It has no basis in fact.”

Proponents of the governor’s bill have said that average jury awards in Tennessee have soared from $166,458 in 2005 to $400,359 last year, according to a letter from Tennesseans for Legal Reform to Beavers.

Advocates of tort reform insist such a move will create jobs in Tennessee. One estimate, by the free-market Tennessee Center for Policy Research, is that the state will see 577 more jobs a week with the reform. Proponents point to other states in the Southeast moving toward reform, and the one that has gotten the most attention is Mississippi.

But Sen. Tim Barnes, D-Adams, got in his own zinger when he pointed out that Mississippi ranked 45th in unemployment last month.

“Maybe I’m missing something, but when do these 500 jobs a week start coming in?” Barnes asked.

Nashville attorney Lee Barfield could only reply, “Adopt the bill, and then we’ll start.”

Thompson made a special note about the “catastrophic” cases as outlined in the Haslam bill. He derided efforts to list all the specific outcomes that would fall under that definition.

“We take it upon ourselves to list the kind of thing that we can think of that would truly be catastrophic,” Thompson said. “For some reason, if we’re going to try to do that, serious brain injury is not in there.”

The Haslam bill calls for the greatest damages in cases of paralysis, amputations and severe burns.

Herbert Slatery, the governor’s legal counsel, was there to speak for Haslam, the former Pilot Corp. executive who is in his third month as governor after serving two terms as mayor of Knoxville.

“Our governor is an experienced businessman. He has successfully recruited industry to this state, to Knox County in particular. His family company has also been subject to recruiting efforts themselves,” Slatery said. “He knows his business inside and out, so when he speaks he speaks with some authority.”

Slatery cited the state’s unemployment rate of 9.6 percent and said federal stimulus funds did not move the needle in Tennessee. He pointed to several counties where unemployment is in double figures.

“The governor is of the opinion we cannot keep doing the same things we’ve been doing in the past,” Slatery said. “We’ve got to do something different.”

He said litigation risk is not a conclusive factor in all situations but that it is an important factor.

“The governor is of the opinion that Tennessee is at a distinct disadvantage on this factor,” he said.