Patient Injury Act and Malpractice Claims

The theory behind Georgia legislator Brandon Beach’s proposal for a Patient Injury Act is to address the infamous idea of Tort Reform, limiting or barring dollar recoveries that injured patients can collect on proving negligence by their physicians.

Tort reform concepts are connected with controlling costs because for years physician claims have been that their higher medical malpractice insurance costs are part of why healthcare costs are so high (because they pass these costs onto patients). It’s also claimed by doctors that in order to protect themselves from tort liability they have resorted to defensive medicine, where patients are sent for test after test after unnecessary test. These arguments persist in spite of continuing evidence to the contrary that shows only a rise in healthcare costs to consumers and physician incomes, every other cost associated with the “tort reform” debate has gone down for at least six years.

First, where we are today: According to the “Medical Liability Monitor” (which you can look up), malpractice premiums MPLI has gone down for six years (through 2010 remembering that statistics always have a lag time when they’re assembled).

Second, payments for medical malpractice (total payments) are at their lowest since 1998 (according to a “Public Citizen” report on malpractice which you can look up), which also reports that payments for malpractice (total number of payments representing awards to injured patients) are also down in spite of the fact that medical mistakes are UP.

4/5 of the awards of medical malpractice payments were made for death, catastrophic harm and serious permanent injury.

Finally, “Public Citizen” notes that while the cost of insurance and total amounts of payment, and number of malpractice cases that result in awards to injured patients are DOWN, health care COSTS ARE STILL UP.

So, what’s going on with the proposed legislation entitled the Georgia Patient Injury Act? The Republican Georgia legislator would substitute the traditional path of hiring a malpractice attorney and bringing a lawsuit against the health care provider for an administrative process where patients could file claims and if an independent panel finds that the patient suffered from “avoidable harm” at the hands of a healthcare provider the claim would be forwarded to a compensation panel to determine compensation. Supposedly, by limiting the compensation available to patients, physicians would reduce the practice of defensive medicine.

Who’s for it? “Patients for Fair Compensation,” which describes itself as a 501(c)(4) organization “dedicated to education and engaging citizens and policymakers on the negative impact on patient care due to defensive medicine…” (you can go to their website. Their mission is to “replace our broken malpractice litigation system).

Who’s Against it? In an article on Law.com entitled, “Trial Lawyers, Doctors United in Dislike of Ga. Med-Mal Bill,” (you can look it up on Law.com). Lawyers believe the law will be an unconstitutional denial of trial by jury and according to their website, the Medical Association of Georgia believes that SB 141 Patient Injury Act will produce “additional claims, additional costs,” and that the bill will be found “unconstitutional”.

Where can You Find it? Go to LegiScan site and Georgia and search for Georgia Senate Bill (SB) 141.

How this bill rates for consumers in my opinion, F: However, if it was clarified that this bill was designed to present an ALTERNATIVE to the choice of pursuing a medical malpractice claim in the courts rather than a replacement of the right to make a medical malpractice claim in the courts I would raise the grade to a B- for consumers.

1) Not all the bill’s “findings” (51-13-3) are necessarily “true” regarding (a)(4) that defensive medicine is practiced because of “continued exposure to liability”…There are countering statistics, some cited above that indicate that defensive medicine is more a habit than a reaction at this point considering the drop in medical malpractice rates and malpractice claims and the continued rise in healthcare costs in spite of these reductions.

2) Also (51-13-3) (a)(5), where it’s assumed that physicians are retiring from practice of medicine because of “cost and risk of medical liability in this state”, which would be curious given the overall drop for many years in such rates overall nationwide.

3) Also (51-13-3)(b)(3) discloses that “any action on such applications shall not constitute a judgment or adjudication for medical malpractice, and thus professional liability carriers are not required to report such applications or actions on such applications to the National Practitioner Data Bank.” In my consumer-oriented opinion, that could mean that bad doctors continue to practice medicine reducing quality of care.

4) The administration of the law would be done by government through a Patient Compensation System established under (51-13-4) which would be governed by a Patient Compensation Board (b) of (1) 11 members, (A) five appointed by the Governor, (B) three by the Lieutenant Governor, (C) three by the Speaker of the House (2) for a four-year term. So, no direct voter/public involvement.

5) Applicants (patients making claims) are not prohibited from hiring attorneys (51-13-5)(e) for representation, so, injured patients still need lawyers though they don’t have to hire one.

6) Under (51-13-6) (a) the Office of Medical Review will decide whether the claim (1) moves forward as a prima facie, (on its face medical injury) (2) or is rejected at which time applicant has 15 days from receiving rejection to appeal.

I believe both the assumptions on which this Act is made (pointed out above) and its impact on patient rights through deprivation to an impartial or at least less biased consideration of a malpractice claims are both effectively will deprive patients in Georgia with reasonable recourse for obtaining sufficient compensation for their injuries even when those injuries are found to be due to “avoidable harm” caused by healthcare providers.

I also believe that information regarding the results found by other governing and oversight bodies in Georgia such as medical peer review boards and the like will reveal how difficult it is for patients to actually see physicians experience any consequences from the bulk of injuries they cause in terms of suspension of licenses.

Typically far more patients are injured and uncompensated than patients who receive compensation for injury. Given this bill states that it’s designed to benefit physicians (both in working in Georgia and in avoiding negative malpractice labels for injuries they cause) and therefore that the primary purpose of this bill appears to be the erosion of patient rights through the implementation of an administrative process run by individuals who are POLITICALLY appointed rather than who are chosen by the public who will determine whether and how much patients are eligible to receive for harm, Georgia citizens should proceed with caution.

I also believe that what was asserted in the bill about personal injury lawyers is true in terms of essentially, only taking easy wins for big amounts of money rather than advocating for the vast majority of harms because of the current contingency-based fee schedule where attorneys only get paid if they win. Far from barring only frivolous lawsuits, this situation has resulted in lawyers failing to serve their role in protecting patients and any criticism of the law proposed by Senator Beach should address this systemic shortcoming in providing individuals with access to lawyers and courts in pursuing patient harm caused by physicians.

I only believe this bill is useful if it is deemed to provide an alternative to pursuing malpractice cases, providing for an administrative path rather than a court-case path, rather than a replacement of the opportunity to pursue malpractice cases.