The Stealth Issue 

Nothing has underscored the problems of conducting public business so vividly as the ongoing fiasco of the Shelby County Commission's attempts to deal with the medical malpractice issue.

As we noted two weeks ago, the commission had just passed almost without debate a resolution urging the state legislature to approve significant caps on "non-economic" malpractice judgments. The resolution, which was spoken for by a trio of ad-hoc physicians' advocates, was opposed at the time by only two commissioners, both trial lawyers. One of these, Walter Bailey, pointed out this week when the issue resurfaced that neither he nor his colleagues nor the public at large had had ample advance notice of the resolution or sufficient information on which to conclude its merits.

Yes, the resolution had passed through one of the commission's committees, but more or less perfunctorily, and several of the lawyers who showed up at Monday's commission meeting to protest its passage had known nothing about its existence beforehand.

That is bad enough, but what is far worse is that the commission -- with Bailey and fellow lawyer Julian Bolton the only dissenters -- had gone on to pass the resolution, more or less on the say-so of its advocates and without fully weighing its pros and cons. To their credit, the members of the commission acknowledged as much Monday and set about finding the best way of correcting their error.

After considering various alternatives, including rescinding the resolution outright, the commission apparently (we use the adverb advisedly, given that the next move still remains unclear) decided to convene a public hearing on the malpractice-reform issue, after which it may or may not alter its original "judgment."

What makes the whole affair appear even more bizarre is that, as Commissioner Bruce Thompson observed, the commission had no business taking sides on the issue in the first place. "This highlights the danger of diving into areas that we really don't have influence or control over," said Thompson, noting the state legislature's exclusive jurisdiction over medical-malpractice issues. The commission should "look for a graceful way to hand this off," said the commissioner, who added that even a forum on the matter should be the business of the legislature.

Commissioner John Willingham may have best put his finger on the point when he suggested that the malpractice resolution was only the latest in a series of public matters that have gone before the commission through what he calls "stealth" -- without adequate prior notice or consideration. To his credit, the commissioner has made something of a self-professed nuisance of himself these past few years a propos several such matters -- most of them having to do with costly public construction projects. Only now, well after the fact, are his warnings being heeded.

In endorsing the commission's move to rethink its ill-advised recommendations on malpractice reform, Chairman Tom Moss noted that the state legislature "hasn't paid much attention to us in the past." That may change, now that everybody -- notably the commission itself -- is finally paying attention.


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