Tort Reform Effort Revisited in Study Committee

State senators held a study committee meeting Tuesday on a controversial idea to transform the way medical malpractice cases are settled in Georgia.

Senate Bill 141 was tabled last session. Its aim is to create a new system that functions like a worker’s compensation board. All medical malpractice cases would be decided by a group of state appointees and doctors, outside the normal court system.

At a well-attended committee meeting, the bill’s author, State Sen. Brandon Beach (R – Alpharetta) made his case for why the bill should be revisited next session.

“This will increase patient access. This will reduce time in which a patient will receive compensation anywhere from presently 5-7 years to 6-9 months. And this will also help something else that I think you’ll see in retaining and recruiting physicians.”

Beach was joined by Wayne Oliver and Richard Jackson, both representing Patients for Fair Compensation. The advocacy group was created to combat what’s referred to as defensive medicine, or the practice of doctors ordering unnecessary tests and procedures to keep from being sued.

In 2010, the Georgia Supreme Court unanimously overturned a prior tort reform measure capping medical malpractice damages. The court ruled the cap violated a person’s right to a jury trial.

State Sen. Fran Miller (R – North Atlanta) voted for the overturned cap but he appeared skeptical Beach’s proposal could withstand a legal challenge.

“Before we go down this road, I’m getting a little tired of getting overturned by the Supreme Court in this state,” said Miller. “I want to know why somebody thinks, when we couldn’t have caps, that we could eliminate people’s rights to sue using this kind of plan.”

To address SB 141’s constitutionality, Beach relied on McKenna Long & Aldridge attorney Ben Vinson, who helped draft the bill. Vinson explained there’d be “hundreds of things that are different” from the overturned cap.  

“This is not part of a [medical malpractice] action. In fact we’re replacing [medical malpractice] with something totally new: a comp system.” He continued, “Is it possible a court looks at that and says, ‘wow, that did not exist prior to 1798, therefore the constitutional right to a jury trial never attached.’ Game over.”   

Vinson did concede a legal challenge would be likely.

“Will someone attack this bill? Probably. Will the Georgia Supreme Court have to rule on it? Probably. But we think we have pretty good arguments as to why it could survive and it is essentially the way that workers comp was upheld.”Full audio of McKenna Long & Aldridge attorney Ben Vinson addressing the constitutionality of Beach's proposal.

The bill still has many critics, including the Georgia Trial Lawyers Association and the Medical Association of Georgia, the state’s largest physician group. They say the idea is clearly unconstitutional.

“If a cap on one component of damages is unconstitutional then surely throwing out the entire right to trial by jury would be violative of our constitutional right to trial by jury in Georgia,” said GTLA political director Bill Clark.

A second committee meeting for those opposing the bill is scheduled for September 24.