LITTLE ROCK — Legislation in the form a proposed constitutional amendment was filed Wednesday to address issues raised in a 2012 Arkansas Supreme Court ruling that struck down a provision of the 2003 tort reform law.
Senate Joint Resolution 2 by Sen. Jeremy Hutchinson, R-Little Rock,would require a person who files a lawsuit deemed frivolous to pay the court costs and legal fees of the defendant. The measure caps the amount at $10,000.
The measure also would require that expert witnesses in a medical malpractice lawsuit be trained in the same or similar discipline as the person on trial or have similar education and experience, and that attorneys file a “certificate of good faith” stating that they have a medical expert ready to testify that medical malpractice occurred.
The certificate would have to be filed within 90 days of the original lawsuit being filed. Failing to do so could lead to the attorney being disciplined.
In a 2012 ruling, the state Supreme Court said the provision in the 2003 tort reform law determining which doctors could testify as expert witnesses in malpractice lawsuits was unconstitutional.
Hutchinson told reporters Wednesday his proposal would not specify which doctors could testify as expert witnesses, but that the expert would have to have similar training and experience as the doctor on trial.
“What this prevents is a … a rent-a-doctor who you pay and they’ll say whatever you want them to say as an expert, even though they may be a general practitioner testifying against a neurosurgeon,” he said.
Hutchinson said the proposal is designed to reduce the filing of frivolous lawsuits and “to try to avoid suing everybody under the sun and then in discovery really find out who is liable and dismissing people.”
“We need balanced tort reform,” he said, adding his proposal is patterned after a tort reform law approved by the Tennessee Legislature and signed into law in 2008.
Hutchinson said getting the measure approved this session for referral to the 2014 ballot would be a challenge, but he has managed to gather a bipartisan group of co-sponsors. The 16 co-sponsors in the Senate are equally divided between Republicans and Democrats, and in the House, seven of the 13 are Republicans.
“I think it’s a long ways from being decided, there are going to be a lot of discussions and negotiations, but I think it’s certainly a good first draft to begin negotiations and of course discussion,” he said.
Robert Stroud, a Batesville attorney who specializes in medical practice cases, said he hadn’t read the proposal but said the state Supreme Court in 2012 “said it’s up to the judiciary to decide matters concerning evidence and ability to testify, not the legislature.”
“So, it sounds like what (Hutchinson) is trying to do is change the rules for the Supreme Court to follow,” he said.
David Blair, Stroud’s law partner, said every state has tort-reform rules and “the end result is an attempt to make it harder for an injured patient to seek redress in court.”
The Legislature can refer up to three proposed constitutional amendments to a general election every two years.
Sen. Bobby Joe Williams, R-Cabot, said Wednesday he also planned to file a proposed constitutional amendent on tort reform. He declined to provide any details.