Georgia Eyes No-Fault Plan for Medical Malpractice
Georgia physicians are debating whether to push for a state constitutional amendment to reinstate a $350,000 cap on medical malpractice non-economic damages or scrap the current tort driven system in favor of a scheme similar to the one used in workers’ compensation.
In 2005 state lawmakers rewrote the medical malpractice law. They raised the burden of proof individuals must meet to sue emergency rooms, placed a two-year statute of limitations on claims, and called for some parties to pay the other’s legal fees.
The centerpiece of the reforms was a $350,000 cap on non-economic damages. But in 2010 the Georgia Supreme Court declared that unconstitutional, saying it improperly nullified a jury’s ability to award damages.
Now, health care providers are considering their next move in an effort to rein in costs and reduce their medical malpractice premiums.
Jackson Healthcare Solutions CEO Richard Jackson believes it is time to replace Georgia’s current medical malpractice system that relies on courts to settle claims with a no-fault model that would mirror the one utilized to resolve workers’ compensation claims.
“The medical malpractice system is incredibly inefficient and the money actually goes to others in the system and not patients,” said Jackson.
Through the Patients for Fair Compensation, Jackson and his colleagues are advocating a no-fault system whereby claims would be funneled through an independent medical review panel. The independent panel would review claims and forward those it finds have merit to a compensation department that would create a fee schedule for damages.
Jackson said the proposed system would restore the original intent of the system, which was to compensate patients in the event of a medical error. Now, he said, many deserving patients go without benefits because no attorney will take their case.
“If you are poor, unemployed or a child, attorneys will not take the case,” Jackson said. “What we want is a no-blame, streamline system that pays patients and is way more efficient.”
Jackson, citing a Towers Watson study, noted that in the past five years the state’s medical malpractice insurers reported an average annual profit margin of 47 percent.
By comparison, during that same period of time Georgia’s workers’ compensation system paid out 65 percent of the premium dollar in injured workers’ benefits.
Jackson said switching to a no-fault system would also help curtail defensive medicine that costs billions. A recent Oppenheim Research poll of 330 Georgia physicians found that 82 percent practice defensive medicine.
The same survey said that 95 percent of licensed physicians would support moving from a tort to a no-fault system. Ninety-six percent of the physicians said they think a move to a no-fault system would reduce the cost of health care and 90 percent said it would improve the quality of care.
The Patients for Fair Compensation plan is not without its critics. Medical Association of Georgia Executive Director Donald Palmisano questions whether the state really needs to totally restructure its system and replace it with one that is untested by any other state. “We know the cap on non-economic damages work,” said Palmisano. “In 2005, it reduced claims and more physicians entered into Georgia.”
Given the Supreme Court’s decision to strike down the $350,000 cap on non-economic damages, Palmisano said some want a state constitutional amendment to reinstitute the cap. “It’s one of the possible solutions in the future,” said Palmisano.
Georgia Trial Lawyers Association Political Director Bill Clark said that the no-fault plan would unfairly favor physicians over patients by having physicians in essence adjudicate medical malpractice claims. Also, Clark said that the system would likely face the same constitutional objection as the $350,000 cap because it would deny a patient access to a jury.
“Patients would still have to show that malpractice is caused by physicians and if physicians had provided care it would not have occurred,” Clark said. “That is a liability system.”
But Jackson argues that 99 percent of all medical malpractice claims are settled before they go to court. He also says the no-fault plan is constitutional for the same reasons that workers’ compensation is. Namely, that it would provide guaranteed access to a medical malpractice system for all patients, not just those that attorneys are willing to represent.