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Panel Holds Hearing On Bill To Replace Med-Mal - Daily Report

August 28, 2013, by Kathleen Baydala Joyner

Legislation that would replace Georgia's medical malpractice system with a workers' compensation-type board is gearing back up in the state Senate, but a main concern remains whether the idea would withstand a constitutional challenge.

The chamber's Health and Human Services Committee debated the bill last session but tabled it with a vow to negotiate and revise the legislation this summer. A subcommittee on Tuesday held its first hearing on the subject at the Capitol.

"Based upon our experience with the court system, I want to know why somebody who thinks we can't have caps on damages will allow us to eliminate folks' rights to sue," said Senator Fran Millar, R-Atlanta. He was referring to the Georgia Supreme Court's 2010 decision that scrapped caps on pain and suffering damages in med-mal cases, which the Legislature approved as part of a sweeping tort reform bill in 2005.

"I'm getting a little tired of getting overturned by the Supreme Court of this state," added Millar, who is an insurance broker.
Wayne Oliver, executive director of Patients for Fair Compensation-the group of health care administrators behind Senate Bill 141-argued that the idea could clear constitutional challenges.

He said because the bill would replace jury trials with a guaranteed review and compensation system, it would be upheld by the appellate courts. Oliver also noted that the high court had upheld the workers' compensation system, which the Legislature approved in 1910.

Senate Bill 141 was filed last year by Senator Brandon Beach, R-Alpharetta, who is president and CEO of the Greater North Fulton Chamber of Commerce. Beach and Oliver promoted the bill as a way to ensure that more injured patients receive compensation-faster-while reducing physicians' incentives to order unnecessary and expensive procedures and medication to protect themselves from lawsuits.

The new system would require an injured patient to submit an application to a review board of physicians and experts who would determine whether there was an avoidable injury and award compensation based on a payment schedule conceived by actuaries. The system would be regulated by an 11-member board of government appointees.

The committee did not hear testimony from other parties, but the Georgia Trial Lawyers Association, the Medical Association of Georgia and MAG Mutual Insurance have voiced their opposition. The State Bar of Georgia also is against the measure, saying it would block access to courts.

GTLA chief lobbyist Bill Clark condemned the bill, saying it would create "an unmeetable burden of proof" for patients.

"They would have to prove to an absolute certainty that their injury would have been avoided, but for the defendant's conduct," Clark said.

He also noted that patients wouldn't be judged by their peers but rather by their physicians' peers.

"We've seen how hesitant physicians are to critique their fellow physicians' behavior before the state medical board [that licenses doctors and other practitioners]. I see no reason they would change that practice with a compensation system," said Clark.

MAG obtained an opinion earlier this year from former state Attorney General Michael Bowers, now a partner at Balch & Bingham, who told the committee last session that the bill would not have "a snowball's chance in Hades of passing constitutional muster."

Bowers pointed to the unanimous 2010 Supreme Court decision in Atlanta Oculoplastic Surgery v. Nestlehutt, 286 Ga. 731, which overturned caps on damages after determining that they violated the constitutional right to a trial by jury.

Patients for Fair Compensation then solicited a response opinion from law firm McKenna Long & Aldridge. Firm associate Benjamin Vinson told the subcommittee Tuesday that evoking the Nestlehutt opinion may be the "simple attack" in court on the legislation.

"Our simple response is that Senate Bill 141 didn't exist in 1798 [when Georgia ratified the second version of its Constitution, which established the right to trial by jury]. The patient compensation system didn't exist in 1798. We are creating something new," Vinson said. "I think that when the Georgia Supreme Court looks at this law, they'll view it not as an extension of med-mal. We are replacing med-mal with something entirely new. ... Therefore, the right to jury trial does not attach. Game over."

Richard Jackson, chairman of Patients for Fair Compensation and CEO of Jackson Healthcare, likened the situation to the creation of the state charter schools commission. He said if the new law were to be found unconstitutional, it would be so popular that the Legislature would have no trouble passing a constitutional amendment to allow it.

"We will be able to get a constitutional amendment because everybody's making more money, and the cost of the system did not go up, and there is some reduction in defensive medicine," Jackson said.

Although several senators expressed skepticism in their questions of the bill, the proposal does seem to have some allies on the committee.
"Just because we think that the Georgia Supreme Court is the bogeyman in the room ... maybe we need to do a little more work on the Georgia Supreme Court and not change our opinions on good legislation," said Senator Judson Hill, R-Marietta, who is a lawyer.

A second hearing has been scheduled for Sept. 24, in which the subcommittee plans to hear from opponents of the bill.

The Aug. 28 article "Panel Holds Hearing on Bill to Replace Med-Mal" misquoted Georgia Trial Lawyers Association chief lobbyist Bill Clark when he spoke of burden of proof. Clark's quote should have stated that patients "would have to prove to an absolute certainty that their injury would have been avoided, but for the defendant's conduct."

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