Emergency room liability law under attack

Northeast Georgia Medical, other hospitals don’t want rules to change

By Debbie Gilbert

A slight change in the wording of Georgia’s malpractice reform law could make a big difference to hospitals and patients.

The consumer advocacy group Georgia Watch is pushing for an amendment that would make it easier for patients to sue hospitals if they believe they’ve been harmed in the emergency room.

Senate Bill 286 was introduced during the 2007 Georgia General Assembly session, but was not brought up for a vote. It’s expected to be reintroduced during the current session, which began Monday.

The bill targets a provision in the tort reform law passed in February 2005, commonly called SB 3. That law says ER staff cannot be held liable for damages “unless it is proven by clear and convincing evidence that the physician or health care provider’s actions showed gross negligence.”

SB 286 would replace “showed gross negligence” with “failed to meet the applicable standard of care.”

That may seem like mere semantics, but Georgia Watch director Allison Wall said the change would be significant from a legal standpoint.

“The most common definition of ‘gross negligence’ is ‘reckless disregard for the safety of a patient,’” she said. “But that’s almost impossible to prove in the emergency room. So basically, no attorneys are taking ER (liability) cases anymore, because they don’t believe they can win.”

The phrase “applicable standard of care” might be more precise. For example, an attorney could use medical records to show that a doctor failed to follow the standard treatment protocol for a specific diagnosis.

“This wording would at least give patients a chance at achieving accountability,” Wall said. “Most people don’t know about SB 3, and they’re really shocked when they find out they don’t have any (legal) recourse.”

At the time the law was passed, hospitals argued they needed extra legal protection for ER personnel because of the unique circumstances. Patients often come into the ER with no known medical history and are unable to respond to questions, so doctors have to take their best guess about the safest course of treatment.

“The hospitals are absolutely right about those challenges,” Wall said. “Patients do show up in the ER without any records. The part of the law about ‘clear and convincing evidence,’ I do feel is appropriate. Where I feel they crossed the line was with ‘gross negligence.’”

She said the original draft of SB 3 did not include that phrase. “It got changed when the bill went to the House,” she said. “The Georgia Hospital Association really wanted that wording.”

Kevin Bloye, spokesman for the GHA, said the language was necessary. “Ask any hospital how difficult it is to get physician coverage for emergency rooms,” he said. “(This law) gave physicians the protection they needed to do their jobs and take care of patients and not have to worry about these exorbitant insurance premiums.”

Northeast Georgia Medical Center in Gainesville is among the 174 hospitals that comprise the GHA. Medical center spokeswoman Cathy Bowers said they are satisfied with the law as it is.

“We support Senate Bill 3, the significant tort-reform bill that was previously passed, and we are opposed to opening up the legislation to debate,” she said.

Jillian DePuma, spokeswoman for the Medical Association of Georgia, said the physicians’ organization also opposes any amendments to SB 3.

“MAG remains dedicated to protecting the tort-reform legislation passed during the 2005 session,” she said.

Bloye said any attempt to change SB 3 would create a “slippery slope.”

“It has served Georgia patients well and has enhanced access to care,” he said. “There was a real crisis prior to 2005. We were seeing doctors leave the state (due to high malpractice costs).”

Wall contends the bill has not achieved its desired goal.

“As far as I can tell, it hasn’t helped the hospitals,” she said. “Before SB 3, they were saying, ‘Our costs are so high, we’re going to have to close down our (obstetric) units and trauma care.’ Now the law has been passed, and they’re still saying that.”

Bowers said it’s true that insurance premiums are still high.

“We have not seen a direct benefit at this point,” she said. “Our malpractice costs have not decreased. But more professional liability insurance carriers have expressed interest in returning to the Georgia market, and we think this will benefit us in the long term.”

Walls said SB 286 is supported by at least 15 state senators, 10 Republicans and five Democrats, including the Senate majority and minority leaders. None of the co-sponsors are from Hall County.

“I think it’s the most simple bill to be introduced in the legislature this year,” she said. “It’s just a one-sentence change, and it’s not retroactive.”

But Bloye doesn’t feel a change is needed, because he sees no evidence that SB 3 has harmed patients.

“I don’t think it takes away legal recourse from patients who have a legitimate claim,” he said.
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