The Tennessee legislature is considering two bills intended to reform medical malpractice claims. One bill changes the liability standard from negligence to gross negligence in medical malpractice cases involving physicians and other clinicians rendering care in a hospital emergency department. The current standard for liability is ordinary negligence, meaning that the clinician failed to provide care in accordance with the prevailing standard of care for his profession or specialty and, as a result, injured the patient. Gross negligence is considerably harder to prove. Past Tennessee court rulings have described gross negligence as “arising from the conscious neglect of duty or a callous indifference to the consequences” or as a “negligent act done with utter unconcern for the safety of others.” Other states that have a similar higher standard of negligence against emergency department personnel have defined gross negligence as extraordinary or outrageous conduct, the failure to exercise even the slightest care, and a gross departure from the ordinary standard of care. This heightened standard will make it harder for patients to sue emergency department staff.
The second bill that has been proposed would place a $1 million cap on non-economic awards in medical malpractice cases. The bill defines non-economic damages as damages for pain and suffering, inconvenience, discomfort, physical impairment, mental anguish, disfigurement, loss of enjoyment of life, loss of society and companionship, loss of consortium, injury to reputation, and punitive damages. It should be noted, however, that fewer than seven cases per year in Tennessee ever hit the $1 million or greater mark. Since 2008, when Tennessee enacted a law requiring plaintiffs in medical malpractice cases to obtain a certificate of merit from a health care professional before proceeding with the case, malpractice cases have dropped sharply. There was an almost 60% decrease in cases from 2008 to 2009.