A medical malpractice battle erupts in Georgia - again

There have been quiet visits to doctors’ offices, expensive pitches sent to voters’ doorsteps and big money pouring in from all sides – all over a proposal that’s likely a longshot to win legislative approval this year.

At the heart of the conflict: proposed legislation that would radically overhaul Georgia’s medical malpractice system, moving patients’ claims from the courts to a new administrative system that would be the first of its kind in the country.

Supporters of Senate Bill 141 argue the changes would avoid lengthy and costly jury trials many patients simply can’t afford. It would also, they say, cut down on so-called “defensive medicine” practices, in which doctors order unnecessary medical tests to protect themselves in case of lawsuits, that drive up health care costs.

“Doctors are just checking the box so they don’t get sued,” said state Sen. Brandon Beach, the Alpharetta Republican who is sponsoring this legislation. “That’s what we’re really trying to fix. And I believe in my heart that defensive medicine is causing healthcare costs to rise.”

The bill’s opponents have called it flatly unconstitutional — denying patients the right to have their complaints heard by a jury of their peers — and warn it would actually lead to higher health care costs and more administrative headaches for doctors.

“It takes away the constitutional right to have your day in court,” said Elena Parent, executive director of Georgia Watch, a nonprofit consumer advocacy group.

Gov. Nathan Deal isn’t championing the legislation, and many observers don’t believe it has enough support to pass this year. But that hasn’t stopped both sides from mobilizing over one of the more intriguing clashes in the statehouse.

It’s really a continuation of a fight that reached a climax eight years ago, when powerful lobbies representing physicians and trial lawyers warred over an overhaul of malpractice rules. Back then, newly minted Republican leaders flexed their muscles and won broad changes that infuriated patients’ advocates and delighted doctors groups.

Yet the courts have since dismantled key parts of the law, including a 2010 Georgia Supreme Court ruling that toppled the crowning achievement: A $350,000 cap on jury awards in pain and suffering cases that was ruled unconstitutional.

But if this fight teaches us anything, it’s that Georgia’s political ground is constantly shifting. The Medical Association of Georgia and the Georgia Trial Lawyers Association, which have fought bitterly over malpractice changes over the years, are now united in opposition to the plan.

The doctors’ advocates and its lobbyists argue the new scheme could cost upward of $44 million to administer. And lawyers’ associations warn it could block access to the courts and brandish the recent pronouncement of former Attorney General Mike Bowers, who said the proposal had a “snowball’s chance in Hades” of passing legal muster.

“This bill will be struck down as unconstitutional,” said Bill Clark, the chief lobbyist for the trial lawyers. “The constitutional right to a trial by jury is one boundary the Legislature should not broach.”

Opponents argue it would also dramatically increase the number of claims for insignificant injuries, such as lacerations and rashes, by expanding the filing standard from situations where doctors are considered negligent to any type of avoidable injury.

Just because there is a bad outcome for a patient doesn’t mean the doctor did something wrong that should be compensated, said Dr. Michael Greene, a family physician in Macon. Negative outcomes sometimes happen even with the very best of care, Greene said.

“There is no perfect treatment,” he said. “I think we have to get back to reality.”

Wary legislators are reluctant to pick sides on the eve of an election-year session where leaders are likely to tread lightly around controversial issues. The governor said in an interview that the proposal is not part of his agenda, and House powerbrokers privately say it’s not expected to be a priority in what’s likely to be a speedy session.

The supporters, though, are rallying behind a costly and ambitious lobbying campaign to force the issue. They’ve got the backing of Patients for Fair Compensation, a nonprofit supported by business interests, and Bernie Marcus, the co-founder of The Home Depot.

“All eyes are on Georgia,” wrote Marcus, a well-connected GOP donor, in a recent AJC editorial. “If our legislators pass long overdue medical malpractice reform, other states will follow suit. With Georgia’s leadership, national health care costs can be cut dramatically, and both doctors and patients will get real justice.”

The boosters have paid for billboards on busy highways and mailers featuring Marcus’ mug. They’ve highlighted the Medical Association of Georgia’s ties to the powerful MAG Mutual insurer, which also opposes it.

A quieter campaign is also well underway. Wayne Oliver, who heads Patients for Fair Compensation, has spent the last 90 days traveling the state and meeting with hundreds of doctors to push the overhaul in a pre-session push to drive the agenda.

“I don’t think the voters of Georgia send our Legislature to Atlanta to embrace the status quo and to do anything except to rock the boat,” he said. “Most legislators embrace the opportunity to be bold. And this is an opportunity.”

That push is unfolding already at the statehouse, where a Senate committee recently held the final of five hearings on the legislation. In a cramped Capitol room, Senate legislators heard from experts who offered vivid night-and-day opinions on how the proposal could transform Georgia.

Even the analysts corralled by supporters conceded that the new system would lead to a sharp increase in new malpractice claims, but they said they would likely cost less overall. Some also predicted the system would lead to improved medical outcomes by holding physicians more accountable.

“Many cases of preventable harm are being missed, and with this more reporting of harm should occur,” said Allen Kachalia, a Harvard Medical School professor who boasted of the benefits of the change. “By providing patients with the ability to easily report harm, the healthcare system should benefit immensely.”

But Donald Palmisano, who heads the Medical Association of Georgia, said his organization deduced after a yearlong review that it would be a bigger administrative headache for providers and lead to more expensive payments overall.

And then there was Frank Vandall, an Emory University legal professor who was nothing if not blunt in his analysis that the proposal will backfire and wind up being “enormously expensive.” He urged lawmakers not to bite off more than they can chew.

“It’s like blind people trying to look at an elephant,” he said. “They think it’s 12 inches across, but they’re just holding the leg.”

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