August 30, 2013, by Dave Williams
After failing to make headway this year, supporters of overhauling Georgia's medical tort system are promising a serious push for the bill in the 2014 General Assembly.
An Alpharetta-based nonprofit group is spearheading a campaign to replace the current litigation-based system with a no-fault Patient Compensation System modeled after workers' compensation.
"The current system is broken," Wayne Oliver, executive director of Patients for Fair Compensation, told a state Senate subcommittee Aug. 27. "This approach saves lives, saves money, improves patient outcomes and appropriately compensates legitimately injured patients."
The heart of the criticism of the current medical tort system is that it encourages physicians to practice costly "defensive" medicine, unnecessary tests and treatments doctors order to protect themselves from being sued.
Oliver, who once served as vice president of former U.S. House Speaker Newt Gingrich's Center for Health Transformation, cited a national study by The Gallup Organization that attributed 26 percent of health-care spending to defensive medicine. In Georgia, that amounts to $14 billion a year in potential savings, he said.
Sen. Brandon Beach, R-Alpharetta, who introduced the bill last February, is pitching it as a better way to reduce medical costs than Obamacare, the federal health-care reform law Republicans loathe.
"We can't do anything about what is going on in Washington, but we can control what's happening here in Georgia," Beach said. "This is the only thing being talked about that actually reduces costs in the health-care system."
Under Beach's bill, patients who believe they have been victimized by medical malpractice would take their case to a review board of medical professionals instead of hiring a lawyer to file a lawsuit.
The board, made up of specialists in the type of injury involved, would determine whether the patient was harmed by an avoidable medical error. If so, the patient would be compensated based on a formula that takes into account what victims historically have received for similar injuries.
Oliver said such a system would make it easier for injured patients to seek compensation than the current litigation-based system. He said trial lawyers typically don't accept a case unless the potential damages are worth at least $350,000, leaving to fend for themselves patients who suffer less serious injuries or can't claim lost wages from high-paying jobs.
"Most folks never get their day in court," he said.
A study Patients for Fair Compensation commissioned from a risk management consulting firm concluded that the proposed compensation system would result in both more claims and more awards. But the new system still would save money in the form of reduced malpractice insurance premiums, according to the study.
Patients for Fair Compensation Chairman Richard Jackson said the biggest part of the savings would come from taking trial lawyers out of the picture.
"You're basically taking money that's now going to attorneys and giving it to patients," said Jackson, chairman and CEO of Jackson Healthcare LLC, a medical staffing company in Alpharetta.
But the bill got a cautious reception from the Senate subcommittee at the first of what are expected to be three to five hearings on the proposal before the end of the year.
Sen. Fran Millar, R-Dunwoody, supported tort reform legislation the General Assembly passed in 2005 that set a cap of $350,000 on awards for noneconomic damages in medical malpractice lawsuits. The Georgia Supreme Court overturned the cap in 2010 as an unconstitutional violation of patients' rights to a trial by jury.
Millar said a provision in Beach's bill that limits the total amount of compensation awarded to medical malpractice victims statewide each year to what was paid out the previous year plus inflation is essentially a similar cap.
"I'm trying to understand why we think our court system is going to allow that provision?" Millar asked. "We've been down this road before."
Oliver said he expects the proposal's basis in the workers' compensation system should protect it from being overturned because the courts have upheld workers' comp.
Beyond the constitutional question, the bill's opponents also question having panels of medical experts decide medical malpractice cases rather than juries.
"You have to convince doctors," said Bill Clark, political director for the Georgia Association of Trial Lawyers. "We've seen how hesitant physicians are to critique their fellow practitioners."
While the trial lawyers' opposition to the bill is no surprise, given their financial stake in the current system, some physician groups also are against the measure.
Dr. John Rogers of Macon, president of the Georgia College of Emergency Physicians, said the notion that eliminating lawsuits would end what critics describe as defensive medicine is wrong.
"We do what we feel is right for the patient in front of us, not to scare lawyers away," he said. "I don't see how this changes the dynamic."
Sen. Renee Unterman, R-Buford, chairman of the Senate Health and Human Services Committee, said the bill's opponents will get a chance to air their concerns at the subcommittee's next meeting.