Birds of a Feather: Why Tennessee Doctors Stick Together in Malpractice Cases

In medical malpractice litigation we often see a phenomenon where doctors stick together and seem to defy logic in the way they swear under oath that sometimes deadly mistakes aren’t malpractice. Surely some of these testifying physicians are acting out of sincerity and part of this “blindness” to a colleague’s medical errors may be attributed to the “old boys club”, but a skeptic might conclude there are other motivations at play. In Tennessee, the overwhelming majority of doctors purchase malpractice insurance through an entity called State Volunteer Mutual Insurance Cooperative (SVMIC). SVMIC is a cooperative that is owned by its members, who are generally doctors practicing in Tennessee.* In 1975, a group of doctors formed SVMIC and the venture has proven to be wildly successful. In less than 40 years of existence, SVMIC has achieved a surplus, or net worth of over $364 million (as of 2010). Part of these enormous profits ($71.9 million in 2009) are funneled back to members in the form of dividends and premium reductions. On those rare occasions when a malpractice case goes to trial (just 5.2% of all negligence cases filed in Tennessee make it to trial) there is a clear financial incentive for doctors to testify on each other's behalf. As trial lawyers, the rules of evidence enforced by the courts forbid us from mentioning anything about insurance during a trial, so most jurors have no idea that rendering a judgment in favor of a malpractice victim simply means that an insurance fund worth hundreds of millions of dollars will, if the appeals courts don't overturn the verdict, have to write a check that will not in any way, form or fashion affect anyone's access to medical care or cause their local physician to go out of business.

*SVMIC has expanded, over the last few years, into the neighboring states of Alabama, Arkansas, Georgia, Mississippi, Kentucky and Virginia but does not yet dominate those markets as it does the Tennessee insurance market for doctors.