Tort Reform in the 2003 Georgia General Assembly
By W. Scott Barber
The American Medical Association has identified Georgia as one of 2 states facing a medical liability crisis. In 2000, Georgia physicians incurred over $92 million in jury awards, the 11th highest payout in the nation despite the fact that Georgia ranks 38th in total number of physicians. Insurance premiums for Georgia physicians increased 20 percent in 2002 and will increase that much again in 2003. Because of the constraints of Medicare, Medicaid and Managed Care, physicians are unable to increase charges for their services to defray the rising costs of insurance. Therefore, physicians, hospitals, nursing homes and other caregivers are being forced to limit the services they provide or get out of the business of providing healthcare.
What are your elected officials doing to remedy this situation? The 2003 Session of the Georgia General Assembly did provide mild relief through tort reform. However, the 2003 Session also presented opportunities for tort reform that were missed in our new political landscape.
Mild Relief
Until recent legislation, a judgment obtained in Georgia would draw 12 percent interest while the case was being appealed. This rule often deterred defendants from appeals because of a windfall plaintiffs gained at a rate of interest much higher than the market normally bears. However, the post-judgment interest rate was changed from a rate of 12 percent to a rate equal to the prime rate plus three percent.
The biggest gain in the 2003 Session was the amendment of the dismissal rule so that plaintiffs get one dismissal which must be used before swearing in the first witness of the trial. While this may not seem like a big gain, the previous rule allowed the plaintiff to dismiss and later renew the case on two occasions and the dismissal was allowed at any time before the plaintiff rested their case for any reason a plaintiff felt an advantage could be gained by stopping the litigation and starting over.
Missed Opportunities
With conservative legislators occupying more prominent places than ever in Georgia history, the 2003 Session presented unprecedented opportunities for tort reform. However, the Legislature missed the opportunity to strengthen the laws regarding expert testimony. Currently, any physician, whether practicing or not, can testify in any case regardless of the medical specialty at issue. The General Assembly failed to pass a bill requiring experts be licensed in the same specialty as the defendant physician before being allowed to testify that the defendant violated the standard of care.
Also, Georgia law currently allows a plaintiff to present to the jury the full amount of their medical bills for recovery, but the jury is not allowed to hear about amounts paid by Medicare, Medicaid or private insurance. The General Assembly should seek to eliminate this collateral source rule which prevents juries from considering the actual amount of the plaintiff's damages.
Additionally, Georgia has a $250,000 cap on punitive damages but no limit on non-economic damages like pain and suffering. Twenty-three states have limited non-economic damages to $250,000, but Georgia has no limit on damages for pain and suffering which is determined by “the enlightened conscience of a fair and impartial jury.” With a similar cap since 1975, California insurance rates for physicians have increased 168 percent compared with 500 percent nationwide.
Finally, any type of meaningful tort reform must consider limits on attorneys’ lees. Plaintiffs’ lawyers currently receive a contingency fee of up to 50 percent of any recovery. By shifting the expenses of preparing the case to the injured party, plaintiffs often get less money than their lawyers. Twenty-one states have placed limitations on attorneys’ fees through a sliding scale with contingency fee percentages decreasing as the awards increase. However, Georgia has taken no such action.
What Can We Do?
Communicate with your legislator and be willing to point out the missed opportunities in the 2003 Session. Through the Internet and email legislators are more accessible, so communicate your opinion to your legislator.
Source: Western Georgia M.D. News, August 2003