Georgia General Assembly attempts to eliminate medical practice cases

The Georgia General Assembly has just considered the most pernicious attack yet on the right of injured patients to have their case decided in a court of law by a jury of their peers. SB 141 is the brainchild of Patients for Fair Compensation, a trade group, and was introduced by a State Senator who is the president of CEO of the Greater North Fulton Chamber of Commerce. There are no patients behind these groups, only industry.

SB 141 proposes replacing an injured patient’s right to sue for medical malpractice with an administrative agency similar to the Workers Compensation Board. The law would set up a very complex system whereby every asserted malpractice claim would be reviewed by, among others, a panel of doctors. The proposed system would, allegedly, help avoid costly medical errors and allow more patients to be compensated for their injuries. These panels would be the only remedy for someone injured by medical malpractice.

Opposition to SB 141 comes from both sides of the medical malpractice arena. It would not surprise anyone to learn that attorneys who represent victims of medical malpractice would oppose the law since it would deprive our clients of their constitutional right to trial by jury. Joining the trial lawyers are the Medical Association of Georgiaand MAG Mutual Insurance Company. The Medical Association represents more than 7,000 physicians who practice in Georgia. MAG Mutual insures the vast majority of Georgia physicians against medical malpractice claims. Thus, the people who sue the doctors and the people who defend those lawsuits find themselves working together. Clearly, the doctors think that SB 141 would end up costing them more time and money than the current system.

One so-called justification for creating the board is that it would give people an opportunity to bring claims if they cannot afford an attorney. Since attorneys work these cases on a contingency fee basis, and don’t get paid if they lose, they are careful in selecting which cases to take. It costs lawyers a lot of money out of their own pockets if they lose a case. What is unsaid is that for every medical malpractice case we accept, we reject at least 99 other cases. In effect, our firm and other plaintiffs’ attorneys effectively cull out the most of the allegations of medical malpractice. Under the proposed plan, all 100 of those claims could be filed and the system would become bogged down in baseless claims.

SB 141 is bad for patients and it is bad for doctors. It was tabled until next year, and we can expect its ugly head to rear once again.

Fortunately, more likely than not the proposed law violates the Georgia Constitution and would not be enforced even if passed by the General Assembly. This conclusion is based upon the decision of the Georgia Supreme Court in Atlanta Oculoplastic Surgery v. Nestlehutt, in which the court held that there is a constitutional right to trial by jury in medical malpractice cases.