Senate committee takes a look at med-mal legislation

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A proposal to eliminate medical malpractice lawsuits in Georgia and replace them with a structured compensation system – something that is not currently done in any other state – got its first vetting from a Senate study committee Tuesday.

The panel chaired by Sen. Renee Unterman (R-Buford) plans to hold four or five hearings in all on SB 141, the latest attempt to get rid of malpractice litigation.

SB 141 would establish a “patient compensation system” that would review cases where a patient suffered “avoidable harm” and make specified payments to those patients. Patients who allege they have been negligently harmed by a physician would no longer be allowed to go to court and sue.

Georgia would be the first state to enact this proposed system, which would be similar to the workers compensation system that provides payments to workers injured on the job. Funding for these payouts would come from premiums paid by doctors and healthcare providers.

“Physicians benefit from the system because they’ll never be sued again,” said Wayne Oliver, a former aide to Newt Gingrich who is pushing for the passage of SB 141. “There’s no personal financial risk.”

Supporters of SB 141 contend that the bill will lower healthcare costs by encouraging doctors not to practice defensive medicine and by eliminating the costs associated with the trials of medical malpractice suits.

“It’s one of the few solutions out there that really goes to the issue of cost containment,” Oliver said. “It’s a much more efficient utilization of existing funds.”

“We really can’t do anything about what’s happening in Washington, but we can control what happens in Georgia,” said Sen. Brandon Beach (R-Alpharetta), the sponsor of SB 141.

Some of the committee members seemed skeptical of the bill and questioned whether it could be upheld as constitutional by the courts.

The last big push to limit malpractice litigation came in 2005 when the General Assembly passed legislation that restricted the filing of these lawsuits and imposed a $350,000 cap on pain-and-suffering damages in those cases.

Most of those provisions, including the damage cap, were later thrown out by the Georgia Supreme Court on constitutional grounds.

“I can’t see how a court system that wouldn’t allow (damage) caps would allow you to take away a patient’s right to sue,” said Sen. Fran Millar (R-Dunwoody). “I’m getting tired of being overturned by the Supreme Court.”

“In spite of the effort to take this out of the legal system, it is part of the legal system and always will be,” said Sen. Dean Burke (R-Bainbridge), a physician.

Ben Vinson, a McKenna Long attorney who’s consulting with the drafters of SB 141, said the constitutional issues could probably be overcome.

“Will someone attack this bill?” Vinson asked. “Probably. But we have pretty good reasons to think it will survive.”

The Georgia Trial Lawyers Association (GTLA) and the Medical Association of Georgia (MAG), an influential physicians’ organization, have both opposed the provisions in SB 141.

“Every time we look at it, we can’t get past the unconstitutionality of it,” said the GTLA’s Bill Clark.

Dr. John Rogers of Macon, president of the Georgia College of Emergency Physicians, said that “very few” of his medical colleagues would support the concept of SB 141.

“The financial concerns are still there for physicians,” Rogers said. “I don’t see how this changes any of the dynamics.”

© 2013 by The Georgia Report

Tags: Bill Clark , Brandon Beach , Dean Burke , Fran Millar , John Rogers , malpractice lawsuits , patient compensation , Wayne Oliver