Malpractice bill opposed by doctors and lawyers

Morris News Service
ATLANTA — An idea described as a strategy to control health costs and improve quality of care is drawing opposition from Georgia doctors.
Trial lawyers who make a living suing doctors and hospitals are also opposed.
And so far, the Georgia Chamber of Commerce that normally advocates for ways to save employers money on insurance premiums isn’t supportive. It’s taking no position at all.
Despite the powerful groups either fighting it or staying neutral, the proposal also has some hefty allies with deep pockets.
The idea is that instead of finding a lawyer and spending years taking a case to court to recover from a medical mistake, patients could simply tell their story to a panel of three, independent physicians. If the panel agrees after reviewing all medical records, a check based on national compensation averages could be in the patient’s hands within weeks.
Because there would be no need for a lawyer, patients with claims too small to interest attorneys could also get compensation, supporters argue.
“I think it’s really a social-justice issue,” said Kelly McCutchen, president of the Georgia Public Policy Foundation, a think tank focused on market-based solutions.

Only 2 percent of claims ever receive compensation under the current system, he argues.

“If you’re poor or you’re elderly or you live in a small town, your chances are less than 2 percent,” he said.

The Gallup Organization estimates $650 billion could be saved nationally from the health care system — more than one of every four dollars spent — if doctors, hospitals and other medical providers didn’t have to protect themselves from being taken to court by ordering unneeded tests. In Georgia alone that’s $14 billion annually.

“It enhances an individual’s right to a remedy. ... Most of the other reforms have really tinkered with reshaping the tort process,” said Wayne Oliver, executive director of Patients for Fair Compensation. “This, however, changes the whole game. A doctor would never, ever be sued. A hospital or a nursing home would never be dragged into court.”

The so-called patient’s-compensation system would be similar to the century’s old worker’s compensation system in use in Florida, Georgia and every state.

PFC has five, veteran lobbyists working in the Georgia General Assembly where the patient’s-compensation legislation, Senate Bill 141, was introduced last week. They haven’t reported any expenditures by the halfway point of the legislative session, but the group spent as much as $190,000 lobbying last year in Florida for its concept.

For the second year in a row, lawmakers in Florida will also consider legislations crafted by the group.

Last year, the effort to create a patient’s-compensation system fizzled quickly. Legislation was filed in both the House and Senate during the 2012 legislative session, but they did not receive a committee hearing.

The bills gained no momentum despite the group building a robust lobbying team that included some of Florida’s best-known firms. Overall, the group spent between $100,000 and $190,000 with four lobbying firms. Florida law only requires clients report a range of lobbying expenses.

The group has written a 29-page draft bill that will soon be filed, but details, including bill sponsors, have not yet been finalized.

“We expect bills to be filed in the coming weeks and for the legislators to study this issue more thoroughly in the upcoming session,” said Jordan Jacobs, Patients for Fair Compensation’s Florida spokeswoman.

She said the only major change this year would allow doctors who want to “opt-out” of the administrative process proposed by the group to follow a more traditional medical malpractice path. “A physician who opts out of the [patient’s-compensation system] will not pay any fees, administrative or otherwise, but will be subject to the current, traditional, medical-malpractice litigation within the civil court system,” she said.

In Georgia, PCF couldn’t find any legislator to introduce its bill last year. This year, it only succeeded in getting Sen. Brandon Beach, R-Alpharetta, to sponsor it after he won a special election last month.

“There were a lot of people thinking that the bill would never be introduced,” said Oliver, who came on board with PCF only Feb. 1.

At this point, most legislators say they know little about the bill, including the doctors, dentists and trial lawyers in the General Assembly. Even the chairwoman of the Senate Health & Human Services Committee assigned to consider it, Sen. Renee Unterman, R-Buford, isn’t well versed in it yet.

However, putting the bill in her committee instead of the Judiciary Committee made up of lawyers may have been a major boost from Lt. Gov. Casey Cagle. She said it’s because Judiciary’s chairman, Sen. Josh McKoon, R-Columbus, is just in his second term and has never chaired a major committee or overseen a complicated bill.

And Cagle had told her earlier that he wanted her to stay on as Health chairwoman rather than Rules as she wanted because there were big healthcare bills coming that she was best suited to deal with.

“I was thoroughly engaged in tort reform. I worked on tort reform for 15 years,” said Unterman, a former nurse.

Georgia passed a tort reform law in 2005 that, among other things, capped jury awards for pain and suffering in malpractice cases at $350,000. It was because the Georgia Supreme Court ruled the caps unconstitutional for limiting juries that interest in the patient’s-compensation system picked up momentum.

She wouldn’t promise to put the SB 141 up for a vote, but she did say it would get a public hearing, adding that passage of any big change usually takes years.

“Tort reform is so complicated. It didn’t pop up one session and get passed,” she said. “And this could be something we deliberate over for years because you’re changing an infrastructure and a jury system. You’re changing a way people do business, whether it’s legal or medical. It takes a long time. It’s a lot of deliberating.”

It won’t happen without a fight either.

In one corner is the Georgia Trial Lawyers Association, the attorneys whose livelihood comes from suing doctors and hospitals. The group argues that the threat of losing a big lawsuit is what helps prompt medical providers to be careful and invest in safeguards against accidents.

They can point to a December critique by the Center for Justice & Democracy at New York Law School that concludes injured patients would get smaller payouts.

“That only means one thing: dramatic reductions in recoveries for the most seriously injured patients to levels well below their actual losses, likely forcing them onto other government health and disability programs, such as Medicaid,” the report stated.

In another corner is the Medical Association of Georgia, the professional association for physicians. Forty doctors on its board voted unanimously to oppose the bill, according to MAG Executive Director Donald Palmisano.

“We met with Jackson Healthcare about a year and a half ago, and we did a study of our own,” he said.

One aspect of that study included a review by former Attorney General Michael Bowers who concluded it was unconstitutional for the same reason the tort-reform caps were.

“The clarity of the Supreme Court’s unanimous holding leaves little room for doubt as to the constitutionality of a statutory scheme that would eliminate jury trials from medical-malpractice actions,” Bowers wrote. “It is therefore my opinion that it is about as certain as we can get in law that the act would be held unconstitutional if challenged....”

But even if Beach had introduced a constitutional amendment rather than a simple bill, MAG would still object for two reasons.

First, the number of claims would soar because injured patients could file themselves. An Emory University law professor released a study last year showing that lawyers typically turn down cases that are certain winners unless the award will be at least $250,000. Even strong cases are routinely rejected if expected awards are below $500,000, she found.

That’s because trial lawyers use their own money to cover upfront costs like tests and expert witnesses, and they need large awards to come out ahead.

One of the selling points of a patient’s-compensation system is that most of those legal expenses would be saved. AON Global Risk Consulting estimates that today, attorneys get 30 cents of every dollar medical providers pay in liability premiums while patients get just 23 cents. Under a patient’s-compensation system, it figures patients would get 51 cents and attorneys just 9, and overall premiums would drop 8 percent for the providers. The rest of the money goes to administration and profits, which would also drop by half, the company says.

While MAG receives royalty income from premiums to the MAG Mutual insurance company it started, Palmisano says that has nothing to do with the association’s concern about the bill.

It fears expenses will actually rise because of the increase in claims, which AON predicts will grow tenfold.

Those added claims present another problem for physicians. They would all have to be reported by federal law to the National Practitioner Data Bank.

Because there would be a lower standard of proof to convince the physician review panel in a patient-compensation system than what’s required in a jury trial, all of those extra incidents on a doctor’s record could make it hard to get a job and hospital privileges in another state where the proof standard is higher.

“It would be an unfair comparison,” Palmisano said. “... We look at what’s best for the physicians of Georgia.”

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