State Medical Malpractice Damages Amounts Rising

KNOXVILLE – Court judgments and settlements for Tennessee medical malpractice lawsuits are getting larger, but that has not triggered a crisis here as it has in some states, a University of Tennessee law professor said Friday.

Carol Mutter, who teaches Remedies, Insurance Law, and Healthcare Law at UT, said exact totals for medical liability awards are unavailable because most are confidential settlements, but larger payments are a trend in many states.

Damages from all Tennessee torts cases, including medical malpractice, increased from about $44 million to a record $94.6 million in 2001, according to the Tennessee Attorneys Memo, a weekly summary of Tennessee law developments. The average award in the state rose from $144,220 to a record $209,284.

“Clearly there is a medical malpractice insurance crisis in a number of states,” Mutter said. “Mississippi, Nevada, New York, West Virginia, Florida and Pennsylvania have been particularly hard hit.

“Both juries and judges seem inclined to award larger amounts for losses such as pain and suffering.”

More effective attorneys, expansion of types of damages, and changes in social attitudes are factors pushing damages amounts upwards, Mutter said.

Increased medical liability payments, combined with stock market losses and inaccurate pricing, have led some U.S. insurance carriers to fold or to drastically increase malpractice insurance premiums.

The large insurance premium hikes have caused doctors in some states to close their practices, creating physician shortages, Mutter said.

“In today-s medical environment physicians generally cannot absorb liability insurance premium increases by charging higher fees, due to the restrictions of the managed care framework and federal Medicare reimbursement,” Mutter said. “Reduced access to medical care has sparked political pressure on Congress to impose caps on jury awards.”

In Tennessee, medical malpractice insurance premiums have risen 32 percent in two years. The state has no cap on damages awards, but other factors have helped avert a crisis here, Mutter said.

For example, State Volunteer Mutual Insurance Company, a physician-owned, mutual insurance company rated among the nation’s best, covers most Tennessee doctors.

Also, the Tennessee Medical Malpractice Act places certain restrictions on medical liability cases that do not apply to general torts cases, Mutter said.

The Act’s restrictions on expert testimony can make medical malpractice cases more difficult to bring, but one of the restrictions is being challenged in a case now before the Tennessee Supreme Court. Other recent Tennessee Supreme Court cases have expanded the types of damages that can be awarded in Tennessee.

“We’ve had a lot of positive things in our favor in Tennessee that have prevented us from having the kind of crisis some of these other states are having,” Mutter said. “On the other hand, we have a situation where premiums are going up, judgments and settlements are going up, and recent Tennessee Supreme Court decisions have expanded damages that can be obtained. It is counter-intuitive to say that these developments could not have any effect in Tennessee.”