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Medical Malpractice Rights Denied by Tort Reform

The Tort Reform Act of 2005 may be going up on appeal. In 2005 Georgia legislators saw fit to pass a Tort Reform Act that, among other things, gave emergency room doctors virtual immunity from negligence suits.

That bill provided that the ER staff cannot be held liable for damages unless it is shown by clear and convincing evidence that the doctor or health care provider’s actions showed “gross negligence.”Gross negligence is defined as the absence of that degree of care that every man of common sense, however inattentive he may be, exercises under the same or similar circumstances.Another common definition of “gross negligence” is “reckless disregard for the safety of the patient.”

In addition to this standard of care change, pain and suffering damages in a medical malpractice case were capped at $350,000.Thus, if you are injured as a result of medical malpractice, your right to recover has been greatly diminished.

In a case currently pending in Fulton County Superior Court, Plaintiff Cheon Park claims that the malpractice of doctors and attendants in a Douglas County Emergency Room left him a quadriplegic.

Plaintiff Park fell from a 12-foot ladder on December 9, 2006.EMTs immobilized his neck and back with a cervical collar and backboard.He was transported to Wellstar Douglas Hospital.He complained of neck, shoulder and arm pain.His cervical and backboard were removed.After a short workup, he was released.However, he could not move. Family and hospital staff had to carry him to his family automobile. Three days later at Grady Hospital, he was diagnosed with three spinal fractures and spinal cord bruising.He is now a C-4 quadriplegic, having limited use of his arms and no use of his legs.

The plaintiff claims the Tort Reform Act reformed “his constitutional rights right out of existence.”As ER patients are granted a lower standard of care than other patients, his constitutional rights to equal protection of the law were violated.

Trial lawyers and civil advocacy groups argued against tort reform, claiming that it deprived victims of constitutional rights and that the medical insurance industry had fostered a false crisis, blaming frivolous lawsuits for driving up premiums when financial markets had actually caused some, but not significant, losses.

In 2005, advocates for Tort Reform claimed that it would reduce malpractice premiums for doctors, thus lowering insurance rates and attracting more doctors and a variety of insurers to Georgia.

Records obtained from the Office of the Insurance Commissioner reveal the opposite.Many of Georgia’s insurers raised their premiums since the reforms took place in 2005.

Mag Mutual, Georgia’s largest medical malpractice insurer, increased physician premiums by 55.4 percent from 2000-2004. Since 2005, First Professional Insurance requested a 68.3 percent rate increase and was granted a 35 percent rate increase.Medical Assurance Company requested a 64.10 percent rate increase and was granted a 35 percent rate increase.The Medical Protective Company requested two rate hikes, one four months after the Tort Reform Act passed.Rate hikes of 24 percent and 28.8 percent were both allowed.Finally, Medical Mutual Insurance Company received a rate hike of 13.8 percent in January of 2006.

All of these rate hikes occurred during a time period when medical payouts to malpractice claimants and plaintiffs have dropped significantly because of limitations created by Georgia Tort Reform Act.

Looking at the evidence, the Tort Reform Act has completely failed in its stated purpose of lowering physician premiums.Meanwhile, insurers reveal record-breaking profits.The Property Casualty Insurers Association of America reports rising profits from $3 billion to $41 billion during the period of 2002-2004.The National Association for Insurance Commissioners reports that the property casualty industry holds assets in excess of $1.3 trillion.

Allsion Wall, director of the consumer advocacy group, Georgia Watch, debunks Georgia Tort Reform claiming, “the objective of Senate Bill 3 [The Tort Reform Act of 2005] was to limit the constitutional rights of taxpayers who seek justice.”She adds, “the law does nothing to address price gouging in the insurance industry, nothing to improve access to quality health care for our families, and it removes accountability where it is due – the insurance industry.”

Economists at Harvard and Dartmouth published their recent findings in the Cato Institute’s Regulation Magazine.Economists found that caps on medical negligence damages, such as the $350,000 cap in Georgia, have no impact on insurance premiums or the cost of practicing medicine.

In May the New England Journal of Medicine cast doubt on the insurance industry’s claim that frivolous malpractice lawsuits were driving up the cost of malpractice insurance.The Harvard researchers found that cases involving real negligence outnumbered frivolous cases two to one.Eighty percent of those cases involved real injuries of significant or catastrophic injury or death.

Piecemeal constitutional attacks on tort reform in Georgia have had some impact.The Georgia Supreme Court ruled unconstitutional that portion of the bill that allowed defendant doctors to demand that cases be heard in their home counties.Last year the court struck down a section that required medical malpractice plaintiffs to open their medical records before they were allowed to file suit.

A new bill before the legislature this session, Sentate Bill 286, proposes replacing the “gross negligence” standard with “failed to meet the applicable standard of care.”Needless to say, The American Medical Association and Georgia Hospital Association oppose this bill.

However, the Park case provides an opportunity that the Georgia Tort Reform Act will be struck down in its entirety as unconstitutional.Let’s hope that the court is willing to do what the legislature did not – protect Georgia citizens.