Proposed Bill Threatens the Rights of Medical Malpractice Victims in Georgia

“First do no harm” is the beginning statement of the Hippocratic Oath that every doctor takes. Unfortunately, when mistakes are made due to negligence and a patient becomes a victim, medical malpractice lawsuits are often necessary to recover compensation for medical bills, lost wages, and pain and suffering. They also provide necessary review and correction of medical mistakes by providing precedent for legal recourse when mistakes are made due to negligence.

Senate Bill 141

There are some proposed changes to the way that Georgia medical malpractice claims are handled that could limit victims’ rights. This month, Georgia State Senator Brandon Beach introduced a bill that would create a hearings-system to handle medical malpractice claims – taking them out of the hands of a jury and placing doctors in a position of self-governance:

Senate Bill 141 would create a system in which patients take complaints of doctor or hospital mistakes to a panel of physicians for hearings rather than filing lawsuits in court. If the panel concludes compensation is warranted, it pays out of a fund all providers pay into, like the no-fault system that covers on-the-job injuries.

The bill claims to be an attempt to “simplify” the system and reduce liability-insurance premiums for healthcare providers. The long term aim is to hold down health-insurance costs for employers once physicians stop ordering unneeded tests as part of what they call “defensive medicine.” Supporters of SB 141 say it is in response to a decision three years ago by the Georgia Supreme Court ruling that a $350,000 caps on malpractice awards was in violation of Georgia’s State Constitution which allows every citizen the right to a trial by jury.

What the supporters are saying

Supporters of the bill say that it would allow for smaller cases of medical malpractice to be reviewed – cases that most lawyers would not pursue because the payouts would not cover the expense of the investigation required to prove the case. They believe that it would result in compensation for patients that might not have a case for a large lawsuit.

“Senator Beach is doing patients and taxpayers a real service by proposing this legislation,” said Wayne W. Oliver, executive director of Patients for Fair Compensation, an advocacy bankrolled by employers and healthcare companies.

We disagree.

Why it is a bad idea

In the Supreme Court’s 2010 decision to overturn the imposed caps on awards, they stated “the very existence of the caps, in any amount, is violative of the right to trial by jury.” It would appear that this new bill is a greater violation to that basic right, as the jury is not limited, but removed from the equation all together and replaced by a panel of doctors. Mr. Oliver and the Patients for Fair Compensation are lobbyists, paid by the healthcare and insurance industries. They are proposing legislation that will limit the expenses that these industries will encounter in a medical malpractice trial by a jury. This seems like putting the fox in charge of the hen house.

If the ultimate goal is to limit the cost to insurance companies and the doctors responsible, then using this panel approach would greatly benefit not just the doctor accused of malpractice, but doctors in general. The bill’s supporters believe that by limiting the payout in medical malpractice cases, the medical malpractice insurance industry would be able to lower their premiums, saving medical professionals and facilities money, and that eventually those savings would be passed on to all patients. There is no evidence that this would happen. What seems more likely is that victims of malpractice would be denied their day in court and ultimately the compensation that they deserve for their injuries.

The proposed bill sounds good in theory because doctors should have a better understanding of medical terms and conditions than a jury might, and a clearer picture of how the patient would be affected by mistakes both in the short term and for the remainder of their lives. However, while they might be better equipped to determine if malpractice occurred, a lawsuit is not about medicine as much as it is about economics. How can a panel of doctors evaluate the economic implications of an injury better than a jury? They can’t. They can, however, evaluate the economic implications on their fellow doctor. This new legislation is about controlling how much a patient can receive from the offending doctor or healthcare facility in a medical malpractice case by letting the decision lie with those who would be adversely affected by a large settlement.

Some favor this panel approach because they believe that the legal profession takes advantage of malpractice victims by taking as much as 40% of the settlement awarded to cover their fees. Medical malpractice cases are very expensive to pursue, and usually they are taken on a contingency basis meaning that the attorney is not guaranteed payment. The compensation that is awarded in court reflects what the victim deserves as well as the risk that lawyers take by agreeing to represent these cases. Lawyers must spend thousands of their firm’s money up front to hire doctors and other experts to collect and analyze the evidence to prove that malpractice occurred, as well as additional experts to assess the long term effects and determine the compensation needed to counter them.

Should the proposed panels be enacted to replace a jury, victims would most likely still require legal representation, but fewer lawyers would be willing to roll the dice, fewer lawsuits would be filed, fewer victims would receive their justified compensation, and fewer mistakes would be reviewed and rectified as a result.

If you or someone that you love has been a victim of medical malpractice, contact the Law Offices of Casey W. Stevens today for a free case evaluation: (770)408-6364

Read more about the proposed bill 481 here: http://jacksonville.com/news/georgia/2013-02-08/story/bill-would-take-medical-malpractice-out-courts-put-it-physicians-panel#ixzz2KbCc9M2U

Read more about the 2010 Georgia Supreme Court decision to overturn the 2005 Tort Reform here: http://www.ajc.com/news/news/local-govt-politics/state-high-court-overturns-states-tort-reform/nQdXd/