House Speaker Pro Tem Judd Matheny says the Legislature will probably seek more tort reform next year, and Gov. Bill Haslam, no fan of the new federal health care law, says it’s time to start talking about how to implement the new act anyway.
Those developments show that health care issues remain very much on the table for Tennessee. While tort reform is usually thought of as a legal issue, proponents of limiting malpractice and wrongful death lawsuits have cited litigation as a driver of health care costs.
Matheny, R-Tullahoma, told a Doctors Town Hall audience at Lipscomb University in Nashville on Saturday that he hopes this year’s tort reform legislation is only “the first step of several steps in issues we hope to deal with in regard to tort reform.”
During a break in the formal discussion, Matheny elaborated on those plans and pointed to a so-called “loser pays” effort that could be the next measure in tort liability in Tennessee.
“I just know the General Assembly is very interested in additional tort reform,” Matheny said.
“‘Loser-pays’-type scenarios are ones we will look at, especially with regard to what would be perceived as malicious lawsuits.”
Matheny said potential legislation would address situations where there are possibly second or third appeals in cases.
“A case in point would be if somebody filed a third appeal and the answer was the same as the first two, whether both are in the negative or both in the positive. That person would be responsible for the legal fees,” he said.
The approach would be to confront those who are seen as abusing the system. It would follow a tort reform measure passed this year and spearheaded by Haslam that put caps on non-economic damages in civil cases at $750,000, although the law creates exceptions in cases that involve intentional misconduct, destruction of records or activity under the influence of drugs or alcohol.
Those caps go to $1 million in what are categorized as “catastrophic” cases, which are defined in the law as conditions of paraplegia, quadriplegia, amputation, especially severe burns or the wrongful death of a parent leaving minor children. The new law also caps punitive damages at two times compensatory damages or $500,000, whichever is greater.
Matheny said he would like to see the caps in the law go even lower — to around $250,000 or $300,000 — but he said he did not foresee the Legislature taking that path.
“There will probably be a lot of (tort reform) legislation filed, but there will probably be one thing that rises to the top and is carried by the body,” Matheny said. “I don’t know what that will be yet, but I think there will be some additional tightening.”
Matheny said he has not spoken to Haslam about further tort reform and that Haslam probably wants to give the most recent law a chance to take effect. But there seems to be little doubt that the Legislature is prepared to consider further steps on the topic.
“It’s important to remember that sometimes progress is made in baby steps and after a three- or four-year period maybe we can look back and really see some true progress,” Matheny said.
Spine surgeon says government doesn’t help
The town hall audience Saturday at Lipscomb was an overwhelmingly conservative crowd, with 10 panelists and audience members expressing dislike of the 2010 federal health care overhaul.
Dr. Lee Heib, a spine surgeon and president of the Association of American Physicians and Surgeons, spoke of her practice as a small business owner.
“If you have to run a small business, if you have to produce something, when has the government come in and made your job easier or more cost-effective? It’s never done that. Trust me, it doesn’t do it in medicine either,” she said.
Andrew Schlafly, general counsel for AAPS, who went to law school with President Barack Obama, said the fundamental problem with the new health care law is that it forces citizens to purchase coverage.
“That is the foundation of it, and that is basically un-American,” Schlafly said. “To force people to buy something you don’t want to buy, it’s never been done before. You can look through the Constitution. You can read it backward and forward and ask yourself, ‘What gives the federal government the authority to force us to buy something we don’t want to buy?'”
That’s the question raised by the Thomas More Law Center in Michigan, which has asked the Supreme Court to review a lower court decision upholding the Patient Protection and Affordable Care Act. The Sixth Circuit Court of Appeals, in Cincinnati, ruled against the center earlier this summer, finding the law to be constitutional.
Legal challenges regarding the act also are pending in the Fourth and 11th circuits. It has not been determined if the high court will take up the issue.
The town hall meeting included state Sen. Mae Beavers, R-Mt. Juliet, who spoke to the audience of about 125 people about her Tennessee Health Freedom Act (SB079), which Haslam has signed, which says government cannot force a person to purchase a product as the new federal law does, and prevents penalties against those who wish to opt out of the system.
Beavers also touted her Health Care Compact legislation (SB326), a states’ rights measure, which would allow states to join forces to control their health care funds. That bill passed in the state Senate this year but not in the House.
Ben Cunningham of Tennessee Tax Revolt told the audience the federal health care overhaul would be such a burden on the state it would force talk of a state income tax.
U.S. Rep. Marsha Blackburn, R-Brentwood, spoke of Tennessee’s problems with TennCare as an example of what can go wrong with government-run health care.
Haslam: State should prepare to implement health care act
Haslam, meanwhile, said in a recent interview that time is a factor in whether to address the new federal health care legislation, commonly referred to as “Obamacare,” which has been overshadowed recently in Washington. The most significant aspects of the law do not kick in until 2014, but the law requires states to be ready in several ways when that time comes.
“I quite frankly am surprised that as the clock ticks closer to 2014 there’s not more conversation,” Haslam said.
But he noted one group is paying very close attention to the issue.
“There is a lot of conversation among governors, saying, ‘We need to be prepared to implement this if it does happen,'” Haslam said, adding that “it would be irresponsible not to.”
The 2010 election year brought a significant uproar about the new law, with talk of repealing it after a new Congress was put in place. But Haslam, who opposes the plan, said the furor about the law has seemed to subside since then.
“A year ago, in the middle of the campaign, that was all the talk,” Haslam said. “I don’t know if in Washington the whole budget and debt issue has eclipsed everything else. I don’t know if that’s the situation.”
The foremost issue in the new law is for states to set up exchanges — marketplaces involving competing insurance plans — where people would shop for what best fits their needs. States must set up their own exchanges or allow people to move into a federal exchange.
Tennessee is already working with various stakeholders and what are known as Technical Assistance Groups (TAGs) on the state’s options. The state is accepting comments and questions about the exchange process at firstname.lastname@example.org.
Haslam said the law’s implementation in Tennessee would likely be run through TennCare and the state Department of Finance and Administration. A finance spokeswoman referred questions on the matter to TennCare.
“We’re still watchfully waiting for guidance from CMS,” said Alyssa Lewis, communications manager for TennCare, referring to the federal Centers for Medicare and Medicaid Services. “We’re seeing what’s going to happen when there is more certainty. It’s to see what the options are, and what the appropriate options are for Tennessee.”