Author: Mark Norris

This month’s collapse of Reciprocal of America, the state’s largest reciprocal

insurer against medical malpractice claims, means much more than the loss of

insurance coverage for more than 300 hospitals and other health-care providers

in Tennessee.

It means that the medical malpractice crisis in

Tennessee has arrived ahead of schedule. And the entire

health-care system may be in jeopardy as a result.

Ironically, the receivership of Reciprocal of America

and its affiliates left 3,500 attorneys without insurance for

legal malpractice as well. Will this ripple effect serve as a

wake-up call to trial lawyers who steadfastly oppose medical

malpractice reform, or do we continue to play the litigation

lottery and jeopardize everyone’s access to affordable health care?

The spiraling cost of health insurance for individuals

and employers, malpractice liability insurance for doctors

and hospitals, and coverage for TennCare enrollees is the

result of declining investments and increasing costs associated

with an aging, poorly educated, and sickly population of

Tennesseans as well as the cost of medical malpractice

litigation. We are not alone. The American Medical Association

finds a full-blown crisis in at least a dozen states, including

Florida, Georgia, Mississippi, Nevada, New Jersey, New York,

Ohio, Oregon, Pennsylvania, Texas, Washington, and West

Virginia. It says crises are looming in another 30 states.

With increasing frequency, doctors can no longer

afford to provide care to those who need it, and those who

need care cannot afford it or the health insurance that is

supposed to make the care affordable. Health-care costs for

the privately insured increased 10 percent in 2001. Last

year, premiums for employer-sponsored health coverage rose

12.7 percent. The percentage of Americans covered by

employment-based health insurance fell 1 percent to 62.6

percent in 2001, and two out of five Americans have no group

insurance coverage.

Individuals are losing their private health-insurance

coverage at an alarming rate. The uninsured increased by

1.4 million people in 2001. Eight out of 10 uninsured are

in working families that cannot afford health insurance

and are not eligible for public programs like TennCare. In

Tennessee, the newly uninsured and now uninsurable turn

to TennCare, which teeters on the brink of collapse.

Comprehensive insurance reform is the only real

answer. Reform must address each component: insurers as well

as the insured, providers as well as payers, and courts as well

as claimants and their counsel. The latter is commonly

referred to as “medical malpractice reform.” Although such

reform is debated in Congress, Tennessee cannot afford to wait

for a federal solution.

According to the Tennessee Medical Association

(TMA), 73 percent of Americans support medical malpractice

reform, which imposes caps on damages for

noneconomic “pain and suffering” and punitive damages. The median

jury-verdict award increased 43 percent between 1999 and

2000. More than half of all jury awards now exceed $1 million,

and the average has increased to $3.5 million. According to the

TMA, escalating jury awards and the high cost of defending even

frivolous lawsuits are driving premium increases. The increase

is making access to affordable care progressively more

difficult. Improving access to affordable health care is crucial at this time.

California capped damages over 25 years ago. As a

result, premium increases are only one third of the rest of the

nation. Under California’s more stable system, for example,

an ob-gyn’s insurance costs approximately $57,000 per

year compared to $210,000 for the same coverage in Florida.

We need such stability in Tennessee.

This is why I am sponsoring legislation in the 103rd

General Assembly patterned after California’s reforms,

including caps on damages which otherwise are speculative

and intangible. We must protect the rights of individuals to

fair compensation for malpractice injuries but provide a

more reasonable degree of predictability. Caps accomplish

that. They provide accountability but help preserve access

and affordability. Without caps, the litigation lottery is more

like Russian roulette for the rest of us. n

Mark Norris is a Republican state senator from Collierville.

Of what consequence was last week’s commotion at the state Capitol
Building?

Since my return from Nashville, it seems people care to know more
about what it was like in the midst of “The Mob” than to understand
the impact of a budget passed hastily by fearful legislators looking for a
ticket out of town.

Chaos is becoming a cottage industry in Nashville. Talk shows set
out to enrage their listeners. Those who exercised their right to peaceably
assemble fumbled their right to free speech when rocks were thrown, windows
were broken, and an elderly senator was shoved.

In the midst of the obfuscation, political climbers demonized
fellow conservatives who held out for a constitutional amendment regarding an
income tax. Although we stood for the rights of those who had gathered to
protest big government, ironically, government got much bigger last Thursday
night. Here is how it happened.

Many people do not know that an income tax is unconstitutional in
Tennessee. The Supreme Court ruled it so in 1932 and again in 1960. My law
partner is Tom Prewitt, and his father was chief justice of the Supreme Court
when he wrote, in Jack Cole, “Realizing and receiving income or
earnings is not a privilege that can be taxed … Since the right to receive
income or earnings is a right belonging to every person, this right cannot be
taxed as privilege.”

As an attorney, I am an officer of the Court duty-bound to obey
the law. As a senator, I also took an oath to uphold the Constitution of this
state. There are other revenue measures I prefer, but the appropriate course
of action for those who advocate an income tax is to amend the Constitution
through referendum or constitutional convention.

When it became apparent last Thursday that there weren’t enough
votes to pass a budget bigger than what we put in place on June 29th, Senator
Bob Rochelle approached me and several others to see if we could compromise on
a revenue bill that would include his long-sought income tax.

Although he was willing to concede his graduated tax for a flat
tax (a major concession), and he was willing to include meaningful provisions
for TennCare reform, he could not agree to anything more than an advisory
referendum after implementation of the income tax.

I could not agree to this. We were at an impasse, and it was time
to return to the floor of the Senate to debate whether the “status
quo” budget previously adopted should remain in place (which I preferred)
or be amended to increase spending for employee raises and other miscellaneous
charges which would deplete the state’s share of tobacco-settlement funds.

But the crowd had gathered and the Senate lost its resolve to
hold down spending. There could be no debate because it was impossible to
hear. More than $345 million was appropriated, all the tobacco money was
spent, and a deficit of nearly a quarter billion dollars was generated in a
matter of minutes.

Where there had not been 17 votes for increased spending earlier
in the day, suddenly there were 20, and it was time to go home.

The unintended consequence of the demonstration outside was not
to derail a phantom income tax; rather, it was to bloat the budget, balloon
the deficit, and leave the lions of conservative spending looking foolish for
voting “Yes.” I voted “No.”

No “11th hour deals” will remedy or recover what has
been lost. Determination, details, and a willingness to reform will take time.
Time to understand. Time to acknowledge the need for teamwork. Time for talk
shows to quit their cannibalism. Time to try again and again until we succeed.

Mark Norris is a former member of the Shelby County
Commission, and a Republican member of the state Senate.