Middle ground for tort reform

By David Martin

A face-lift procedure allegedly cuts off the blood flow to a woman’s face, creating gaping wounds from her temples to her chin, leading to extensive treatment and permanent scarring.

This is the case that’s been lodged by Betty Nestlehutt of Marietta, and it’s become more than a patient’s worst nightmare.

It’s now a legal conundrum that’s made its way all the way up to the Georgia Supreme Court — and points up the need for a new way to handle issues of medical malpractice in Georgia.

Nestlehutt took her plastic surgeon to a Fulton County court and was awarded $115,000 for medical expenses and $1.15 million in noneconomic damages, including $900,000 for pain and suffering.

But Georgia law requires that any noneconomic damages be capped at $350,000. The Fulton County judge called the cap, part of the state’s 2005 tort reform law, unconstitutional and in violation of the guarantee to a trial by jury, separation of powers and equal protection.

So the Georgia Supreme Court is taking a look at the case, and many of us in the medical field are left to wonder whether there’s a better way to deal with this legal issue and whether in the debate over tort reform there’s room for some middle ground.

The current system has altered the way physicians do their work.

Medical liability costs are on the rise. Doctors are forced to practice defensive medicine. They’re compelled to order every possible test, wasting valuable time and resources and not making the most of their training and expertise.

It’s all in an effort to avoid negligence and malpractice, but it’s an overreaction to the current climate of fear and litigiousness.

I believe the best way to approach this issue is to have Georgia’s potential medical malpractice cases screened first by a rotating panel of health care professionals, including doctors, nurses and perhaps representatives from the insurance industry. This panel could screen out frivolous lawsuits and put forward those that have merit, saving our court system time and expense.

Maine was the first state to try this, with the Maine Health Security Act, more than 20 years ago. The panel identifies claims of professional negligence that do or don’t merit compensation and encourages dismissal or early resolution of those claims prior to a lawsuit. The panel is chosen by a court-appointed chairman and typically includes one attorney and one or two health care practitioners.

The panel isn’t a required part of the process; it can be bypassed if all parties agree to that. Or the parties can agree in writing to submit their claim to the panel for a binding decision, or the panel’s non-binding decision can be brought to and heard by the court.

As a result of the panels, about 84 percent of claims in Maine end without any payment and average settlement times are roughly half those found in states without panel laws, according to a 2008 study from the American Medical Association.

As of August, at least 20 states were using these kinds of panels to weed through malpractice cases and cut medical liability costs.

It’s time for Georgia to try a similar approach — or risk further stress on our court system, further increases in medical liability costs, further disincentive for doctors to practice here, and more delays as patients like Nestlehutt seek to have their cases resolved.

David Martin, a Georgia RN, is president and CEO of VeinInnovations, which treats peripheral venous disease.