An unconstitutional attack on citizens’ rights

The 2016 legislative session undoubtedly will see the Georgia General Assembly discuss issues related to health care, including our rural hospital crisis, the growing number of Georgians on Medicaid and Medicare, medical education funding, physician retention and many others. As an attorney and a state representative with the privilege of representing over 50,000 Georgians, I take great interest in these issues and enjoy the opportunity to engage in discussions with the many stakeholders and citizens involved.

However, there is one proposal – the so-called Patient Compensation Act – that does not belong in that conversation.

First and foremost, there is no doubt in my mind the proposed law would be an unconstitutional violation of Georgians’ constitutional right to trial by jury. The Seventh Amendment to the U.S. Constitution and Article I of the Georgia Constitution guarantee all citizens have the absolute right to a jury of their peers. This proposal runs directly afoul of our founding documents by revoking the right of Georgians to have their case heard in a court of law before their fellow citizens.

That alone is reason enough to reject this proposal.

As Justice David Nahmias wrote in the Supreme Court of Georgia’s unanimous 2010 decision that wisely overturned so-called “caps” on medical malpractice verdicts, “The General Assembly has broad authority to address the many vexing issues related to health care costs and the availability of health care providers, but the Legislature’s discretion is bounded by the fundamental rights enshrined in our Constitution.”

This legislative proposal would unconstitutionally replace our time-tested civil justice system — which relies on the common sense and impartial judgment of unbiased fellow citizens — with a burdensome, taxpayer-funded government bureaucracy. Under this scheme, a jury made up of local citizens – which is the epitome of local control and limited government – would be eliminated and replaced with an inherently biased panel of political appointees from the medical profession, who alone would sit in judgment of the negligent conduct of their colleagues.

Further, by placing medical malpractice cases in an off-limits-to-the-public system without independent juries, all transparency, procedural safeguards, accountability mechanisms and meaningful appeals processes would be eliminated. This would set a dangerous legal precedent, one no other state has even seriously considered adopting.

Under the Patient Compensation Act, no longer would an unbiased jury have the opportunity to hear the totality of the evidence and award damages, if justified, to medical malpractice victims. Instead, this system would allocate damages based on a one-size-fits-all fee schedule, which would place a predetermined dollar amount on each type of injury without taking into account other factors of a case.

It is not difficult to illustrate why this concept would be problematic. Take, for example, two patients who both lost the use of their left hand as a result of the malpractice of their health care providers. One is a retiree, and the other is a world-renowned concert pianist. Certainly both deserve compensation for the loss of their hand. However, this fee schedule would assign them the same compensation, failing entirely to take into account vital relevant factors such as lost wages, future earnings, loss of enjoyment of life, pain and suffering and other elements that lie peculiarly within the province of an unbiased jury to consider when awarding damages to victims of medical malpractice.

Make no mistake about it: This is socialized justice.

Perhaps just as troubling, the Patients’ Compensation Act would impose a government-regulated cap on the total medical malpractice damages that could be awarded each year. Put simply, the proponents of this bill would set an arbitrary, predetermined maximum amount of compensation available to all victims of medical malpractice for the entire year, and all fee schedule-based payouts would draw from this pool until it has exhausted its funds.

What happens if more patients are harmed in 2017 than in 2016? If the cap is reached in September, are those whose cases are heard in the final three months of the year left without access to compensation for their injuries? This is a nonsensical approach to the reckless apportionment of justice, and demonstrates why one-size-fits-all justice is irresponsible, unrealistic and short-sighted.

I encourage my colleagues and the citizens of our great state to join me in opposing this unprecedented, unconstitutional assault on the constitutionally guaranteed rights of Georgia patients.

State Rep. Dustin “Dusty” Hightower, R-Carrollton, is a partner with the law firm of Miller & Hightower.

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