Two malpractice bills stir passions

Print Friendly and PDF By: Andy Miller Published: Feb 28, 2013

Proposed changes to Georgia’s medical malpractice system consumed a marathon Senate committee hearing Wednesday, as nursing home representatives, physicians, lawyers and patient advocates battled over two bills breaking late in the General Assembly session.

The first bill would promote the signing of voluntary agreements that would send nursing home patients’ injury claims to arbitration.

The second bill proposes a novel type of tort reform that would shift the process of pursuing injury claims to a system modeled after workers’ compensation.

Both pieces of legislation are nearing a de facto deadline. A bill must pass at least one chamber by Crossover Day — expected to be Thursday — in order to have a shot at becoming law. Crossover Day is next week.

The nursing home industry and hospital groups support Senate Bill 202, which attorney Jason Bring of Arnall Golden Gregory said provides consumer protections for patients and their families.

Arbitration is “a very fast, expedient process in resolving disputes,’’ Bring told the Senate Health and Human Services Committee during its four-hour hearing.

Such arbitration agreements already exist, he noted. Many patients or their relatives sign them during the process of admission to a nursing home. The bill, Bring said, would clarify what’s currently unclear about the agreements.

Bring said the bill is important for the nursing home industry in Georgia, where there are more than 300 such facilities caring for thousands of patients. The Medicaid financial crunch is hitting the industry hard, he said.

“Nursing homes operate on a slim margin,’’ Bring testified. And the number of legal claims is rising, he said.

 

Patients’ rights at risk?

Nursing homes can’t deny admission if a patient or a family member doesn’t sign an arbitration agreement because it remains voluntary, Bring said.

But patient advocates said that in practice, the agreements may seem mandatory to a patient’s family.

Kim McCrae of Atlanta, an advocate for seniors, noted that a nursing home admission “is a tremendously emotional and painful process.’’ That can leave people vulnerable, she said.

“These people have been going through a health care crisis,’’ McCrae said. “They will sign just about anything to get them the help they need.’’

Nancy Pitra, of the Senior Citizen Advocacy Project, said arbitration in routine business matters is far different from arbitration over medical care. In a dispute over a car or credit card, “we’re not anticipating we’re going to die from that,’’ she said. In a case of alleged neglect, abuse or injury, the stakes are much higher.

Josh Norris, legal director of the Georgia Advocacy Office, said passing the bill could lead to hospitals also adopting such patient agreements. He added that the cost of arbitration can be high for patients or their families.

Advocates for seniors say the bill is an attempt to get more arbitration agreements accepted by courts, which tend to honor only agreements signed by a person who has power of attorney.

Liz Coyle of the consumer group Georgia Watch said the bill “inappropriately expands the number of people who can sign away’’ an individual’s right to a trial.

Many Georgia hospitals also operate nursing homes, and representatives of the Georgia Hospital Association and the Georgia Alliance of Community Hospitals testified in favor of the arbitration bill.

 

Something completely different

The Senate panel did not vote on the arbitration legislation, nor on Senate Bill 141, proposed by Sen. Brandon Beach (R-Alpharetta), who said a new “Patient Compensation System’’ would lower health care costs by reducing the practice of so-called defensive medicine.

Defensive medicine is when doctors order medically unnecessary tests to forestall later claims that a patient got inadequate care.

The new setup proposed in his bill “replaces a broken system’’ with one modeled after that of workers’ compensation, Beach said.

A new board would operate a medical review committee that would review allegations of patient injuries and a compensation committee to determine payment.

No other state has a malpractice system like the one the proposal would create in Georgia.

Joanna Shepherd Bailey of Emory School of Law said that under the current malpractice system, “many victims have no access’’ to justice.

She said contingency fee lawyers, who get paid only on condition of winning, “can’t take a lot of these cases’’ because there’s not enough money involved in a settlement to even cover their potential legal costs.

Ron and Beverly Bachman, in emotional testimony, told of how her mother died after a misdiagnosis — and how legal remedies were unavailable to them.

Dr. Jeff Segal, a Greensboro, N.C., neurosurgeon, said the legislation would eliminate doctors’ ordering of ‘‘every test under the sun’’ to avoid a lawsuit.

More than 90 percent of victims get no compensation after injuries, said Kelly McCutchen of the Georgia Public Policy Foundation. “We have a great opportunity to be a leader and to do the right thing.’’

 

Strange bedfellows

In an unusual alliance, representatives of the state’s trial lawyers and the Medical Association of Georgia (MAG) spoke in opposition to the new compensation system.

Bill Clark of the Georgia Trial Lawyers Association said the bill is “an unconstitutional infringement’’ on a person’s right to trial by jury.

It would lead to more claims against doctors, which in turn could lead to higher malpractice claims, Clark said.

Proponents said the new system could save billions of dollars now spent on defensive medicine.

But Dr. Michael Greene, a Macon family physician and a MAG official, said, “defensive medicine is not a major part of what we do.” Insurers already question tests that are ordered, Greene said.

MAG opposes the revamp partly because of concerns about its constitutionality and a potential increase in awards paid out.

Dr. Dan Hanks, a radiologist and board member of MagMutual, a malpractice insurer, said Georgia’s tort reform law of 2005 lowered malpractice insurance rates and increased competition.

Hanks said he applauds the effort behind the bill, but added, “no other state has passed this.’’

The bill, he said, “is not ready for prime time.’’

Sen. Renee Unterman (R-Buford), chairman of the panel, said the bills would again be taken up next week.

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