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Florida Times-Union (Jacksonville)
Feb 22, 2005
by TOM CORWIN and SANDY HODSON, Morris News Service
Malpractice battle will continue in Georgia;
Trial lawyers say they're going over their options to overturn the new law, which sets caps.AUGUSTA -- When Georgia Gov. Sonny Perdue signed the medical malpractice reform bill last week, it signaled the end of one long round of the fight and the beginning of another.
But even as opponents and supporters of capping awards on damages ponder a court battle, Georgia can get a glimpse of its future by looking to Texas, which started down the same path 18 months earlier.
Although the governor's signature capped non-economic damages in malpractice cases at $350,000 and raised the threshold for suing over emergency care, opponents say the fight in Georgia isn't over.
"We are exploring all of our options including remedying some of the problems with the bill in this legislative session," said Bill Clark, the director of public and political affairs for the Georgia Trial Lawyers Association. "We also are taking a hard look at whether we can do anything to remedy the awful ER immunity piece of the bill. There are a number of legislators from both parties and both chambers of the legislature who have come to us and admitted that was over the edge."
In order to prove malpractice in the emergency room, the victim would now have to show the provider violated the "gross negligence" standard, which is the highest threshold a plaintiff has to overcome, said Augusta attorney David Bell, the immediate past president of the Georgia Trial Lawyers Association.
"To get a claim against an emergency room, you just about have to have a drunk doctor or a doctor on drugs," he said.
Using that standard is almost unheard of, said Carmen Balber, a consumer advocate at the Foundation for Taxpayer and Consumer Rights in Santa Monica, Calif., which opposes that state's malpractice award caps.
"That is really just unconscionable that that kind of exemption has been passed on to doctors and hospitals," she said.
But fear of being sued over an emergency case is the biggest reason physicians won't take on-call service for a hospital, and it has created a real problem, said David Cook, executive director of the Medical Association of Georgia. Going to this new standard is like using the Good Samaritan law that already protects doctors who stop and provide emergency care, he said.
Regardless of whether there is any further legislative action, supporters acknowledge parts of the law will be challenged as unconstitutional.
"Caps are challenged every time they're passed," said Joseph Parker, president of the Georgia Hospital Association. "The right case will have to be there to take it forward. I suspect the opponents of this will be looking for that case now to move it forward."
Supporters of the reform would like to have a quicker ruling so that the impact they expect from the reforms, such as stabilizing or lowering high malpractice premiums and attracting more companies willing to write such policies, will happen.
"Until we know whether the law is going to be safe from those challenges, then it is kind of hard to implement them," Cook said.
Caps have been overturned in other states, such as Illinois, where courts have held it infringed on the right of the court to assess damages, said Carlton Carl, spokesman for the Association of Trial Lawyers of America.
"This is a usurpation of the authority of jurors, who hear all of the facts in the case, by politicians who know none of the facts in a given case," he said.
That is one of the reasons that Texas, which had previous caps struck down by its state Supreme Court, pushed through a constitutional amendment that gave its Legislature the right to set caps and deterred a court challenge, said Texas Rep. Joe Nixon, R-Houston, who sponsored the Texas bill.
For that reason, the changes in Texas have come faster than even he expected.
"I have to tell you the news has been nothing short of remarkable," he said from his office in Austin. "The malpractice premiums are way down, there's a 15 or 17 percent decrease. We were down to three insurance companies. We're now back up to about 17, in a year."
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