Is medical malpractice in Georgia going to mimic our workers’ compensation system?

In an effort to rein in medical costs and reduce medical malpractice premiums, Georgia physicians are weighing the merits of sweeping medical malpractice reform in our state.  Some are advocating for a plan modeled after the workers’ compensation system.

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“The medical malpractice system is incredibly inefficient and the money actually goes to others in the system and not patients,” said Richard Jackson, CEO of Jackson Healthcare Solutions.

In instituting a no-fault model for malpractice claims, Jackson and other proponents (known as Patients for Fair Compensation) would like to see claims funneled through an independent medical review panel. This panel would review malpractice claims and forward those with merit to a compensation department. The compensation department would create a fee schedule for damages. Just like in the workers’ compensation system, there would be administrative law judges to whom patients or surviving family members could appeal decisions.

“What we want,” said Jackson, “is a no-blame, streamline system that pays patients and is way more efficient.”

Healthcare costs are being impacted, too, by physicians practicing ‘defensive medicine’ in order to defend themselves against potential lawsuits, rather than issuing care to patients based on their needs and best interests. Defensive medicine is the practice of ordering excessive or unnecessary tests and procedures ‘just in case’.

An Oppenheim Research study recently conducted in Georgia showed that a whopping eighty-two percent of the 330 Georgia physicians polled practice defensive medicine. Seventy-four percent said that it negatively impacted patients; contrast that with a mere seven percent saying it improved the quality of patient care.

In addition, ninety-five percent of those 330 would support the change from the current malpractice tort system to the proposed no-fault system. If those changes were made, forty-seven percent stated they’d make great changes to how they approach treating their patients versus thirty-six percent that said they’d change their treatment methods somewhat.

Ninety-six percent of the physicians polled believe that a no-fault system would reduce the cost of health care; ninety percent asserted that it would improve quality of care for patients.

In 2005, Georgia state lawmakers passed a sweeping rewrite of malpractice law that raised the burden of proof that individuals must meet to sue emergency rooms, placed a two-year statute of limitations on claims, and instituted a $350K cap on non-economic damages. The last provision was declared unconstitutional by the Georgia Supreme Court in 2010. They stated that the cap improperly nullified a jury’s ability to award damages based on a case’s facts.

Jackson’s plan does have its detractors. Bill Clark, who works with the Georgia Trial Lawyers Association, points out that the Patients for Fair Compensation plan will unfairly favor physicians over their patients, because physicians would be deciding medical malpractice claims. It would also likely be seen as unconstitutional, because it removes patients’ access to a jury.  Having worked intimately with the workers’ compensation laws of Georgia for the past ten years, I’d have a hard time disagreeing with Bill here.

It will be interesting to see what wins out: constitutionality because of blanket access to a malpractice system, or constitutionality because of blanket access to a jury. At its core, that’s what those on either side of this issue seem to be advocating. Contact my Atlanta workers compensation firm.

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