By Mac Gibson and Josh Belinfante
There’s no doubt that Georgia is facing a medical malpractice crisis. Named by the American Medical Association as one of the “crisis” states for having the most radical increases in medical malpractice insurance premiums in 2002, Georgia has seen medical malpractice insurance rates soar more than 150 percent in the past three years.
The state’s medical malpractice insurance premiums increase every year, and rates will continue to rise so long as health care providers and hospitals face potentially staggering verdicts in medical malpractice cases. In Georgia, the number of medical malpractice claims of $500,000 or more have doubled since 1995, and claims of $1 million and $2 million or more have tripled. As premiums continue to rise, many physicians are no longer performing services once considered routine. Many rural counties now have obstetricians unable to perform caesarian sections or radiologists not reading mammograms because of the increased malpractice premiums.
Many other states faced similar crises years ago. Some responded by enacting legislation that created mandatory medical malpractice panels. These panels review medical malpractice claims before trial, and they make non-binding recommendations in an effort to induce settlements.
The composition of the panels varies from state to state. Some require panels of physicians, other state panels comprise only attorneys, and some states require that both physicians and attorneys serve on the panels. In some states the panels make findings regarding liability and damages, in others they only examine the credibility of the plaintiff’s claims. The process varies, too: Some have a formal hearing; others require panel members to review only documents.
Finally, the ramification of the panel’s finding also varies from state to state. Some systems permit litigants to introduce the panel’s conclusions at trial. In those states, litigants may often call panel members as witnesses. Conversely, other states do not allow the panel’s finding to be admitted at trial.
If Georgia is to end its malpractice crisis, the state needs to enact a system of mandatory medical malpractice panels based upon successful practices of other states. The first step in a Georgia system would be for litigants in medical malpractice cases to submit their claim to a review panel. That panel should comprise five members: three physicians and two attorneys. The physicians and attorneys can be randomly selected from a pool, and being available to serve on the panels could be a requirement for a professional license. Litigants should be able to strike at least one panel member. Panel members should be compensated for at least one day of service.
Once created, the panel should review only written evidence, such as the medical chart, affidavits and depositions. This process would work to focus the inquiry on objective evidence and prevent potentially excessive testimony.
Upon completion of its review, the panel would make findings as to liability and damages. Importantly, if either party is dissatisfied with the panel’s conclusion, it may move for trial after a 30-day waiting period. As in many other states, the panel’s finding regarding liability should be admissible at trial, and fairness dictates that panel members should be available to testify.
Fairness would also dictate that at trial the dissatisfied party must obtain a reversal of the award, or an increase or decrease in damages by 15 percent, or be assessed the fees of the panel, court costs and reasonable attorney’s fees.
The mandatory medical malpractice panel system works. Of the 21 states that enacted such a system, only three (14 percent) are considered crisis states by the AMA. Conversely, 66 percent of the 12 states that repealed their system are listed as crisis states.
Moreover, the system is likely to pass constitutional muster. Currently, the Fulton County Superior Court requires litigants in non-medical malpractice cases involving alleged damages of $25,000 or less to submit to non-binding arbitration. The Georgia Supreme Court has upheld that requirement over claims that it denies a party’s access to courts, violates separation or powers and infringes on litigants’ rights of equal protection.
The malpractice crisis is robbing many Georgians of health care options, and it will continue to do so until Georgia returns to the ranks of the crisis-free states. The General Assembly needs to enact a mandatory medical malpractice panel system as a fair and equitable means of reducing the “jackpot justice” mentality that underlies medical malpractice claims.
The panels are just what the doctor ordered: leaving the courts and juries as the final arbiters of medical malpractice claims while inducing cost-cutting settlements.
[The full study, “The Need for Mandatory Medical Review Panels: The Medical Malpractice Crisis in Georgia,” is available here.]
Mac Gibson is a Partner at Alston & Bird LLP and focuses his practice on complex commercial litigation, including prosecution and defense of fraud claims in the health care and real estate fields. Josh Belinfante is an associate with Alston & Bird LLP. He practices in the products liability group and focuses on medical malpractice and hospital liability issues.
The Georgia Public Policy Foundation is an independent think tank that proposes practical, market-oriented approaches to public policy to improve the lives of Georgians. Nothing written here is to be construed as necessarily reflecting the views of the Georgia Public Policy Foundation or as an attempt to aid or hinder the passage of any bill before the U.S. Congress or the Georgia Legislature.
© Georgia Public Policy Foundation (November 14, 2003). Permission to reprint in whole or in part is hereby granted, provided the authors and their affiliations are cited.
It’s so often a lack of information that keeps us from getting involved. The Foundation is doing for the public what many could not do for themselves. Anytime that we’re given the truth, people can make good decisions.