Op-Ed: Beware the Rule of Unintended Consequences if Senate Bill 141 Adopted
By Mary Lewis
The Law Office of Mary D. Lewis, LLC
Editor’s Note: This article is an opinion editorial and does not reflect the opinions of the DeKalb Bar Association.
Georgia Senate Bill 141, also known as the Patient Injury Act, is up for consideration in the upcoming state legislative session. This piece of legislation has generated a great deal of controversy, and for good reason. Proponents assert that SB 141 represents a constitutional effort to improve injured patients’ access to courts and to reduce health care costs in Georgia. However, in this author’s opinion and as discussed below, a closer look at the bill reveals not only that it is unconstitutional, but that it will in no way improve injured patients’ access to courts or reduce costs. Instead, as the author will discuss in this article, SB 141 proposes an expensive, complex and unprecedented statutory scheme that is overreaching, fraught with potential for abuse, and highly susceptible to the rule of unintended consequences.
SB 141 is unconstitutional
SB 141 is clearly unconstitutional in spite of attempts by proponents to argue otherwise. The Supreme Court of Georgia has unanimously and unequivocally held that the right to a jury trial in medical malpractice cases is a constitutional right, which includes the right for a jury to decide not only whether a health care provider is responsible for the patient’s injury but also the amount of damages incurred. Atlanta Oculoplastic Surgery, P.C. v. Nestlehutt et al., 286 Ga. 731, 734 (2010).
In Nestlehutt, the Court struck down a statutory cap on damages in medical malpractice cases explaining that Georgia’s Constitution guarantees the right to a jury trial in causes of action “as to which there existed a right to jury trial at common law or by statute at the time of the adoption of the Georgia Constitution in 1798.” The Court explained that because the common law right to a jury trial in medical malpractice cases was firmly established at the time of the adoption of the state Constitution, the right to a jury trial in medical malpractice cases is a firmly established constitutional right in Georgia. The Court further explained that because, at common law, this constitutional right included not only the right for the jury to decide fault, but also to determine the amount of damages, the statutory caps contained in the law before the court were an unconstitutional deprivation of that right. Therefore, it is clear that the right to a jury trial in medical malpractice cases, wherein the jury decides both liability and damages, is a constitutional right in Georgia that cannot be abrogated by the legislature. Because SB 141 attempts to abrogate injured patients’ rights not only to a jury’s determination of damages, but access to a jury entirely, it is unquestionably unconstitutional.
SB 141 will virtually eliminate injured patients’ access to courts
SB 141 seeks to dismantle Georgia’s current medical negligence system, including the constitutional right to seek redress before a jury, and to replace it with a complex, unprecedented, and unpredictable bureaucratic system. Proponents attempt to justify the need for this dismantling on the grounds that, under the current system, medical malpractice claims are so expensive and difficult to prove that most attorneys only take a small number of cases involving clear liability and severe injuries.
The bill states that the “General Assembly finds [this has created] an access to courts crisis,” which prevents patients with legitimate, but less severe, injuries from obtaining access to courts and redress for their injuries. The implication appears to be that attorneys are to blame. However, attorneys did not create this problem. Rather it is laws currently in place, previously promoted in the so-called interests of “tort reform” that have driven the costs in these cases up and left recourse far out of reach for most victims of medical negligence in Georgia.
For instance, Georgia law requires injured patients in medical negligence cases to engage experts from the same subspecialty as the defendant doctor’s specialty to testify that the defendant doctor was negligent. Because doctors are reticent to testify against doctors in their own communities, and doubly so within their own subspecialties, this requirement essentially means injured patients must hire experts from out of state and pay them to travel to Georgia to testify. This unnecessarily drives up the costs, sometimes into the hundreds of thousands of dollars range. It is easy to understand how patients with less severe injuries, and their attorneys, might be deterred from seeking redress in the courts.
Other Georgia laws also stack the deck against injured patients seeking redress. For example, Georgia has the most restrictive law in the nation in the emergency care context. Unlike other states, in Georgia emergency care patients are required to prove not only medical negligence, but “gross medical negligence.” This means injured patients in any emergency care context have to prove, not only that health care providers failed to provide reasonable and ordinary care (the standard health care providers are held to in every other context), but also that they demonstrated “reckless disregard for their safety.” When you consider that studies show more injuries to patients due to negligence occur in emergency rooms than in all other hospital departments combined, this standard is not only restrictive, but dangerous.
In sum, SB 141 is not motivated by “an access to courts crisis” but rather proposes to deprive injured patients of any meaningful access to the courts and their constitutional right to a jury trial.
SB 141 creates an extensive bureaucratic system fraught With potential for abuse
There are also policy reasons for rejecting SB 141. While few would argue that attempting to bring down health care costs would be a bad idea, there is simply no evidence that this legislation will accomplish that goal. In fact, SB 141 proposes the creation of a massive and expensive tax-payer funded bureaucratic agency, referred to as “The Patient Compensation System,” which proposes a board, multiple staff positions, and multiple offices, each with their own additional staff positions. Creating a new and massive bureaucratic system is not the answer.
Also concerning is that the system SB 141 proposes is fraught with potential for abuse and conflicts of interests. The bill describes complex procedures whereby injured patients will be required to submit applications for evaluation to “panels” and “teams” vested with the authority to determine whether their applications “constitute a medical injury.” It is not precisely clear how the members of these panels and teams will be chosen, or how they will make their determinations, but it is clear that they will comprise primarily doctors and health care providers. This could create the proverbial “fox guarding the hen house” scenario.
The bill also vests the right to determine the amount of compensation, if any, to which an injured patient will be entitled, in a “Composition Committee.” As proposed, that committee will recommend a compensation schedule based on numbers provided by the Physician Insurance Association of America (PIAA), an insurance industry trade association which represents medical liability professionals. Therefore, the insurance industry will be involved in determining the amount of patients’ compensation. It is difficult to comprehend how injured patients will be fairly treated under a system that requires them, first, to submit applications to health care providers empowered to determine whether their applications “constitute a medical injury,” and, second, if they are so lucky, to accept compensation derived from liability insurance industry recommendations.
SB 141 is not comparable to the workers’ compensation system
Proponents assert that the proposed system is comparable to the workers’ compensation system. However, there are important differences between SB 141 and the workers’ compensation system. The workers’ compensation system was accepted on policy grounds because it represented a mutually beneficial compromise wherein employers agreed to accept liability when employees were injured in the course of employment, which relieved employees of the monumental task of proving employer negligence caused their injuries. In exchange for this much reduced burden of proof, employees agreed to accept reduced compensation for their injuries and lost wages. By contrast, SB 141 does not provide any such mutually beneficial compromise. As explained above, SB 141 problematically provides: first, health care providers will serve as gatekeepers determining whether patient applications “constitute medical injury” and second, compensation, if any, will be based on recommendations from the liability insurance industry.
Even more troubling, SB 141 defines “medical injury” as “a personal injury or wrongful death due to medical treatment . . . which would have been avoided,” presumably, but for the medical treatment provided. This actually sets up a much higher standard of proof, not only than that required of injured workers, but also than that required in traditional negligence cases. To illustrate, while workers’ compensation claimants do not have to prove negligence at all, injured patients under SB 141 will have to prove not just, as plaintiffs in traditional negligence cases do, that their injury could have been avoided but for the negligent actions of their health care providers, but also that it would have been avoided, but for the actions of their health care providers, irrespective of whether the providers acted negligently or contributed to the cause of the injury. That is an extremely difficult standard of proof. It is clear that SB 141 does not represent a mutually beneficial compromise which fairly takes into account injured patients’ interests.
Conclusion
In conclusion, there is simply no rational justification for destroying the current system in this state in favor of the massive, expensive, and unpredictable statutory scheme proposed by SB 141. It is apparent that SB 141 will not even advance its proponents’ stated goals. Therefore, legislators, wisely cognizant of the rule of unintended consequences, should vote no on SB 141.
Mary Lewis, founder of The Law Office of Mary D. Lewis, LLC, dedicates her practice to personal injury and workers’ compensation law. Prior to her admission to the Georgia Bar, Ms. Lewis gained an appreciation and passion for the legislative process, in part, while working in various capacities for legislators in both the Georgia House of Representatives and in the U.S. Senate.