SENATOR FRED THOMPSON DISCUSSES TORT REFORM 

The former senator sits down for an interview with Cityview to discuss how he feels tort reform — a bill that will soon hit the Tennessee Senate floor —  and how it could affect each and every citizen in the state and why he’s campaigning against it. Photography by Bryan Allen

Cityview: How did you first become involved in a discussion about our civil justice system?
Thompson: Well, I became involved back when I was in the Senate. We had several issues come up usually having to do with the federal government and congress wanting to take over the court system in this country and tell jurors in Tennesssee what they could and could not do.  I was not for that. That runs counter to federalism. We have been having local juries make decisions in this country for 200 years, it’s a Constitutional provision.  So I resisted that and had strong feelings about that.  I practiced law for 30 years.  I was one of these Republicans who was in the courtroom a lot and kind of understand the way it operates and had some idea of what’s fair and what’s not fair. And that’s the bottom line, it’s not a matter of deciding the number of lawsuits, who wins, who loses, insurance rates or anything like that. It’s a matter of being fair to everybody. When I was called on to help out in the discussion we are going to have here in Tennessee about our civil court system I was happy to come down and participate in that.  I think that how we deal with justice is one of the most important things that government does.

Cityview: What are the misconceptions about Tennessee’s system?
Thompson: I think there are some misconceptions in that we have something broke that needs fixing. The fact of the matter is we have a good system here in Tennessee that has served us well for a long period of time. If you look at surrounding states I think you will see that Tennessee has one of the  most conducive states to business. It’s ranked as one of the top states in terms of being attractive to business. Our doctors, their insurance premiums, are not as high as states that are contiguous to Tennessee, so you don’t have a runaway bunch of frivolous lawsuits, you don’t have a bunch of malpractice lawsuits; comparatively they are going down instead of going up. So for those who think we need to come in and shake everything up from the way it’s been for 150 years, and take things out of the hands of the jury and have political leaders make decisions that juries have traditionally been making; I think  is a misconception. We are not a high jury state, we’re not a high lawsuit state, we’re not an outlandish award type state, and I just want to make sure as we consider these things we keep that in mind.

Cityview: Why do you feel like there is such a rush for tort reform or a need for tort reform?
Thompson:  I don’t know that there is a rush for tort reform but tort reform has kind of taken on an air of its own and you’re either for it or against it. There is no such thing as finance reform, there is no such thing as health care reform, there is no such thing as tort reform; it is only what is in the bill. It may be reform or it may just be change and not really reform. So everybody thinks all Republicans ought be for tort reform, and that if you’re not a Republican, than you should be against tort reform. I think both of those are fallacious.  We ought to look at what’s being proposed.  It’s not Republican to me and it’s not conservative to me to say that the federal government  or the state legislature ought to come in and upset the authority that has traditionally been held by Tennessee juries. Juries have judges to oversee and guide them and appellate courts if they get out of hand to slap them down.

You just don’t hear of a lot of outlandish stuff coming from Tennessee juries, and I say it’s conservative to say look at our system, our common law system, it served us very, very well in this country, it served us very, very well in this state. Look at the results we’ve got in terms of being conducive to business, of being fair to the average guy. Be fair to the insurance companies, yeah, but be fair to the average person, too, who, sitting here today, we don’t know who that’s gonna be, because we don’t know who’s been unjustly injured. But when somebody goes through what it takes to bring a case and prove their case and liability and that they’ve been grievously injured, and it’s been proven, then somebody’s gonna have to pay for that. Now it may be the tax payer, it may be the family of the person injured, or it might be the defendant or the insurance company that insures the defendant, but somebody’s gonna have to pay, and how we decide how those decisions are made is what this is all about. It’s important to treat all the parties fairly as we work these things out. That’s the common sense, I think, conservative way of approaching these things. Some of my Republican friends don’t agree with that. But I would challenge them to show me where I’m wrong. That having individual responsibility, accountability, and having the government stay out of things that aren’t broke, those are conservative principles to me.

Cityview: Explain for the people that might not understand exactly what tort reform is.
Thompson: Well it’s in the eye of the beholder. I mean it usually has to do with change in the laws under which our civil justice system operates. Some people say that we should have a requirement for certification before you bring in a case for medical malpractice suit, to have a medical person say that this is a meritorious suit.

Cityview: We had some of that in 2008.
Thompson: We had that. We had that in 2008 and it’s proven to have been a good thing, I think. Other people say that it’s putting caps on recoveries. And saying I don’t care what your non-economic damages are. We’re gonna arbitrarily put a cap on how much you can recover. Regardless of what a jury wants to do, the only people who hear all the facts with regard to any particular case. I think that’s wrong, I don’t think that’s reform. I think that’s change, but I don’t think that’s reform. There’s just two instances, but anything having to do with our tort system, our tort laws, any changes, and who can recover and the hoops you have to jump through to get to court, things like that, all that has to do with the tort reform.

Cityview: Well excessive certification requirements for medmal suits along with low caps, won’t that take away the incentive for any attorney to take a case?
Thompson: Well, it will. I don’t…the low caps will, I don’t think the certification will do that. Most attorneys…because what happened, we got a one year statute of limitations, which is shorter than an awful lot of states have. And what if the requirement of certification gave the attorney a little bit more time to determine if the suit’s meritorious. The attorney wants his suit to be more meritorious above all because he doesn’t get paid if the suit’s not meritorious and he ultimately wins at the end of the day. So I don’t think that certification is wrong or burdensome. I do think that caps are. A person is grievously injured, and they say that you can’t have non-economic recovery. You can have your loss wages and things like that, but for a mother, a wife who works at home, for the elderly, for anybody else, in some circumstances, this can be a great injustice. If you lose your ability to enjoy life, to hold your kids or your grandkids, or to see, or to be without pain every moment of your life, if you lose that ability you’ve lost something greater sometimes than your wages. So it’s not fair to say you can get the wages, the economic damage, but we’re gonna tell you, we’re gonna tell the jury, the only people who hear the facts of your case, the only people who know, we’re gonna tell them what they outta do or not do here. That’s not the way it’s been here in Tennessee, and I don’t think that’s the way it outta be in the future.
 
Cityview: Has the change in legislation reduced the number of frivolous lawsuits?
Thompson: I don’t know how frivolous they were, but it has reduced the number of cases. What happened before as I said, we have a short statute of limitations, so somebody comes to the attorney, and the statute’s about to run, say there’s just a couple of months left on that one year. And if you make a hurried diagnosis of the case, so to speak, and decide it’s not meritorious and you don’t file suit and the statute runs, the attorney could be in trouble if it later turns out to be meritorious. So what the attorney would do is go ahead and file suit and then do his discovery to see if the case is meritorious. If it was not, they would non-suit the case and withdraw the case. So those suits got filed. Which you can’t say they were frivolous because, they might turn out to be frivolous, but they might turn out to be not frivolous. And just simply not worth the expense of going forward with them. So, but the bottom line is that notification requirement, giving the attorneys a chance to look at the case a little more carefully, has resulted in over a forty percent reduction of medical malpractice cases over the last two or three years in Tennessee.

Cityview: There’s a perception I think in the public that these lawsuits and these settlements are the reason for high medical costs.
Thompson: It’s just not born out by the facts. People have done studies on this, the most credible that I’ve seen would indicate that all the expenses connected with our civil justice system amounts to about two percent of our medical expenses in this country. So, they’re there, they’re a part of it, hopefully we get some justice from that cost, it’s not just the cost, what do you get from that cost. If someone has been wrongfully harmed and their life has been altered, that’s the cost of the two percent. But even at that it’s a low number in terms of overall health care costs in this country.

Cityview: The number of deaths each year is 98,000 from medical malpractice, approximately.
Thompson: It’s been as high as 98,000 deaths a year, due to medical malpractice. It just happens. I think we have good doctors in Tennessee, I think we’ve had good results there, we all have our doctors, and hospitals, but things happen in hospitals. Sometimes doctors make mistakes. And sometimes they make mistakes in retrospect that they shouldn’t have made. They’re preventable. Most of these mistakes are preventable. Sometimes the hospitals, whether you’re talking about everything from as publically high profile as a wrong leg situation versus not adequately being sanitary, washing hands, interns who are overworked, things like that. We’re all human, these things happen, the question is, when your child goes in, for a routine kinda situation winds up in, well, one case that still sticks with me, winds up dead. Then that’s got to be taken into account.
 
Cityview: Are we losing doctors because of the lack of tort reform in Tennessee?
Thompson: No, no. If you look at the statistics of the states in our area, and I look primarily southeastern area states contiguous to Tennessee, most of them are, the doctors in and out, insurance premiums up and down, you can’t get a direct comparison there. These are small considerations for doctors. Compared to all the other issues that they have to deal with. I’m concerned that there’ll be fewer doctors in the future proportionately because things like the Medicare reimbursement for example, I think some of the things they’re doing in Washington are gonna be bad for the future of medicine. There are lots and lots of factors out there. But the numbers I’ve seen show that states with caps will not do any better in terms of number of doctors, states with caps don’t do better in terms of insurance to premiums, you see a little margin here or there, up or down, but there’s so many factors that go into that.

Cityview: So if tort reform doesn’t benefit the general public, who does it benefit?
Thompson: Well frankly, it primarily benefits the insurance company. There you see where tort reform passes often times where premiums have still gone up and profits are greater than ever. That’s not that I’m anti-insurance company, anti-business, I’ve got my fair share of award for pro-business and I think what’s happened to the insurance companies in this Obama-care discussion is a very bad thing. Some of the insurance companies went along with it because they see guaranteed business out of it. But I think it’s bad for them, it’s making wards of the state. So I side with them on a lot of issues, but the fact of the matter is that they push the so called reforms because, they, fewer and fewer law suits, meritorious or not, the more that adds to their bottom line. As I like to say, you know you can make it so that there wouldn’t be any health care costs due to lawsuits. You could make it so there wouldn’t be any lawsuits. If it’s strictly a bottom line consideration. But you got that other side of the equation. It’s not just the defendant or insurance company, it’s the average citizen out there who may or may not someday either themselves or a loved one, from an experience with a hospital or a doctor, where their lives have been altered, justice needs to be done.
 
Cityview: If we don’t protect our court system, what are we going to have left to take care of the people who do get this, who do have problems?
Thompson: Well, that’s a good question. We’ve been very fortunate in this country, and in this state, by having a court system based on common law principles, Constitutional principles. The overwhelming number of people, the judges, and the prosecutors and all, have been ethical people. We’ve set out rules, from the wisdom that we have acquired over the ages, what worked and what didn’t and what was fair and what wasn’t. We’ve tweaked the system and all, and it’s not perfect by a long shot. But it doesn’t do it justice when you approach it from a simplistic way, and say well we’ve found another way to lower lawsuits. That’s not what it’s all about. What it’s all about is justice. If lawsuits outta be lowered, if they’re frivolous or something like that, they outta go down, but on the other hand if there’s several cases of wrongdoing or negligence, or not paying attention, you hurt innocent people, then whatever lawsuit’s appropriate is required. So, number of lawsuits, insurance premiums, and all that, they all beg the question, the beg of the question is how do we administer justice that’s to people being sued but also fair to the average person out there, who doesn’t know it today but sometime into the future. After all the laws are passed restricting their abilities to recover, sometime in the future they find that they have a situation that needs to be readdressed.

Cityview: Based on your years in the Senate, what’s the best way for the common person to have an impact on how you’re going to vote?
Thompson: Well, it’s the same ‘ol way. It worked when I was in the Senate and still works today and that is, let your elected representative know that you’re watching what they do and that you have opinions about what they do and that you just want them not to be knee-jerk on any of these things, but to be deliberate, and listen to the facts, and what would be, what’ll be best for the state. What will be best for the people in the state. Everybody. Something, a system that will be fair to everybody and not be unduly influenced by one side or another, or groups that can bring the most to parity at a particular time. That’s the tried and true system in our country and in our state and still as valid today as it’s ever been.

Cityview: So give me your closing thoughts on tort reform and why we should work hard to not see it happen.
Thompson: Well, you know, again, I can see some things that people would call tort reform coming down the pipe that I could support if it improves the system. But just because you call it tort reform, doesn’t mean that it’s good. And if I thought that we were being unfair to a group of people in this country or in this state, if I thought that we were running businesses out of the state or not allowing businesses to come in because of this, that insurance was going sky high, or that there were just a rash of frivolous law suits, if I thought any of those were happening, I’d be out there saying we need to do something about this.

Cityview: You’ve done that in the past.
Thompson: Yeah. None of those are happening. None of those things are happening. If they are and I’ve got some bad numbers and lookin’ at bad ways from somebody that’s been in and around the system for a long time, I’m welcomed to be educated. But none of those things are happening, so, you know, my message is, if it ain’t broke, don’t fix it. And if you wanna fix something, demonstrate how it could be better, not just for this group or this business, or this group over here, but how could it be better for everybody. Something that’s fair, for everybody. I’d be willing to take a look at it. And I’ve just welcomed the opportunity to be a part of this process. This discussion that we’re having right now, which has been a very, very good one, as to what’s best. We’re so busy and all, we think in terms of categories and slogans too often. And I know what it’s like, being in politics, you’re pulled every which way. But this is important, there’s nothing more important, there’s nothing more that underlies everything else than our system of justice. And not only doing the right thing but having people think that we’re doing the right thing by them, and the deck’s not stacked. So that’s why I wanted to be a part of this discussion is to what might come out of here and maybe not have a rush to judgment on things but a calm discussion as to what’s best and I’m looking forward to that.

Cityview: Well thank you for taking your time today to discuss this.
Thompson: Thank you. I enjoyed it.