‘Tort reform’ needs surgery, lawmakers say

Bill would change burden of proof in malpractice suits against ER docs
By ANDY PETERS, Staff Reporter

THE LANDMARK 2005 TORT LAW went too far in giving legal protection to emergency room physicians, according to some Republican legislators and attorneys, and they are once again trying to change the law.

A bipartisan group of state lawmakers last week introduced legislation to repeal a controversial part of the law that enacted sweeping changes to state rules governing medical-malpractice suits. The bill would eliminate language that opponents say gives ER doctors almost total immunity from suit.

“Folks are beginning to realize we may have gone too far on that,� said Sen. Seth Harp, R-Midland, the bill’s lead sponsor.

The proposal, Senate Bill 286, would repeal the section of the law that requires medical malpractice plaintiffs to prove that emergency room doctors acted with gross negligence. The bill would leave intact other major portions of the tort law, such as a $350,000 cap on pain and suffering damages in medical malpractice cases.

In addition to Harp, a Columbus family law attorney, the bill’s sponsors include Senate majority leader Tommie Williams, R-Lyons; Sen. David Shafer, R-Duluth, a close ally of Lt. Gov. Casey Cagle; and Senate minority leader Robert Brown, D-Macon.

That kind of broad support indicates the measure may gain traction during this year’s legislative session, said Robin Frazer Clark, president of the Georgia Trial Lawyers Association.

The legislation would restore the burden of proof to ordinary negligence, rather than gross negligence, she said.
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“Many of our members have had person after person come to them with an ER situation, and our members literally cannot take the case,� said Clark, who also is a personal injury and employment plaintiffs’ attorney at Clark Goldner.

“An ER doctor could do anything short of intentionally harming someone and there would not be a case,� she said.

Similar legislation was considered last year, but failed to come to a vote in the full Senate. Sen. Preston Smith, R-Rome, chairman of the Senate Judiciary Committee, had said bringing the measure to a vote would have ignited an unwanted debate on the entire tort law.

Efforts to reach Smith were not successful. Gov. Sonny Perdue does not comment on pending legislation.

Donald J. Palmisano Jr., general counsel of the Medical Association of Georgia, a physicians’ advocacy group, said his group opposes repealing the ER measure.

This year’s bill is much shorter than last year’s. The bill introduced last week only changes one line, replacing a phrase that said the provider’s “actions showed gross negligence� with the phrase “[the] provider failed to meet the applicable standard of care� in this passage:

“In an action involving a health care liability claim arising out of the provision of emergency medical care in a hospital emergency department … no physician or health care provider shall be held liable unless it is proven by clear and convincing evidence that the physician or health care provider failed to meet the applicable standard of care.�

The Senate supported this language in 2005, said Bill Clark, public affairs director at the Georgia Trial Lawyers Association and the husband of the group’s president, Robin Frazer Clark. But in the process of approving the legislation, that phrase was left out of the version that eventually passed and received Perdue’s signature.

Harp, vice chairman of the Senate Judiciary Committee, said that an irony of the landmark 2005 tort law is that it was intended to protect physicians, but the “gross negligence� provision for ER doctors could actually result in physicians losing their malpractice insurance coverage.

Medical insurance policies cover ordinary negligence, but not gross negligence, Harp said.

If medical-malpractice insurance companies told legislators that they would begin adding gross negligence provisions to their policies, Harp said he would withdraw his legislation.

“I’ll go away with a smile on my face if they come in with an insurance policy that covers gross negligence,� Harp said.

While the Legislature considers changes to the tort law, the state Supreme Court also has been taking up plaintiffs’ cases that challenge the same law.

Last month the high court heard a case brought by plaintiff Ernestine C. Wright that challenged a provision requiring medical malpractice plaintiffs to authorize defense attorneys to get the plaintiffs’ medical records and to talk to their physicians. Majorities of two seven-judge panels of the Georgia Court of Appeals agreed with Wright’s position last year and held that O.C.G.A. § 9-11-9.2 conflicts with a federal privacy regulation, the Health Insurance Portability and Accountability Act of 1996, or HIPAA. The case is Allen v. Wright, No. S06C2018.

Last year in ECHA Cartersville v. Turner and Garland v. Earle, 280 Ga. 333, the Supreme Court unanimously found unconstitutional a part of the tort law that allowed medical malpractice defendants to have cases heard in their home counties.

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