The Need for Mandatory Medical Review Panels: The Medical Malpractice Crisis in Georgia

By Mac Gibson and Josh Belinfante

A rural Georgia hospital was forced to forego renovations and an expansion of its emergency room.[1] Family practitioners in central Georgia can no longer afford the medical malpractice insurance premiums that accompany delivering children or performing Caesarian sections.[2] Many radiologists are no longer reading mammograms because it can make their premiums unaffordable.[3] Malpractice lawsuits and insurance premiums are skyrocketing, and the litigation juggernaut affects the lives of Georgians every day.

Georgia is representative of several states across the nation. The American Medical Association currently lists 19 states, including Georgia, as having a “medical malpractice crisis.”[4] A major cause of the crisis is the dramatic increases in the number of medical malpractice lawsuits and amounts of resulting jury awards. According to Jury Verdict Research, the national median jury award in medical malpractice cases increased almost threefold in just six years, from $362,600 in 1994 to $1 million in 2000.[5] Actual and feared awards result in more expensive malpractice insurance premiums for health care providers, even those that have never been sued. The insurance problem grew so significant in West Virginia that surgeons walked out of area hospitals as a means of protesting the unaffordable malpractice insurance premiums.[6]

This crisis is especially acute in Georgia. The number of medical malpractice claims of $500,000 or more “doubled since 1995. Claims of $1 million nearly tripled, as did claims of $2 million or more.”[7] The median award in Georgia increased from $225,000 in the early 1990s to $480,000 in the late 1990s.[8] In 2000, Georgia physicians paid more than $92 million to cover jury awards.[9] This alarming trend contributed to the decision of the St. Paul Companies, which insured many of Georgia’s physicians until December 2001, to cease offering medical liability insurance in the state.[10] St. Paul’s absence leaves many physicians, hospitals and nursing homes with fewer and more expensive options for medical malpractice insurance. As written previously, the American Medical Association recently named Georgia as one of the “crisis” states for having the most radical increases in medical malpractice insurance premiums in 2002.[11] In that year alone, premiums rose by 20 percent.[12]

The litigation phenomenon has dramatic effects on health care in Georgia. According to former Emory Healthcare CEO John Henry, hospital premiums increased 177 percent from 1999 to 2002.[13] Many cut back on services in response. Physicians, too, are no longer performing services once considered routine.[14] These cuts place rural patients in particular at risk because of the limited number of physicians and hospitals.[15] Rural Georgians are more frequently required to drive far from home to receive some basic medical services. The General Assembly should act to prevent the current trend from continuing to destabilize Georgia’s health care system.

Potential Solution: Mandatory Medical Malpractice Review Panels

Many other states faced a similar crisis years ago. Some responded by enacting legislation that created mandatory medical malpractice panels (MMRPs).[16] These panels review malpractice claims before trial, and they make non-binding recommendations to parties in an effort to induce settlements. The system works. Of the 21 states that utilize the MMRP system, only three (14 percent) are considered crisis states by the AMA.[17] Of the 12 states that repealed – either legislatively or judicially – MMRPs, eight (66 percent) are now listed as crisis states.[18]

Georgia should join the states that enacted mandatory medical malpractice panels. Although perhaps not a panacea to the current crisis, requiring litigants to submit disputes to an MMRP could reduce the “jackpot justice” mentality and alleviate some pressure on existing judicial resources. The system has been upheld by a majority of state courts, and Georgia courts seem receptive to the concept. Pending federal legislation may provide the necessary funding. Finally, careful statutory crafting could avoid some of the pitfalls that befell other states’ programs.

1. Legal Challenges Brought in Other States[19]

Plaintiffs have challenged MMRPs on state and federal constitutional grounds. The most common challenges were based on (1) procedural and substantive due process; (2) equal protection; (3) the right to a trial by jury; (4) the right of access to the court and (5) separation of powers.

a. Due Process & Equal Protection

By and large, courts dismiss challenges based on substantive due process and equal protection.[20] Most state courts held that medical malpractice insurance costs provided a rational basis from which the respective legislatures could enact MMRPs. When addressing equal protection challenges, most courts apply the rational basis test, because litigation is not a fundamental right and medical malpractice plaintiffs do not constitute a protected class. Courts routinely have rejected equal protection claims for these same reasons.

Florida alone struck an MMRP provision as unconstitutional on procedural due process grounds in the Aldana decision.[21] In Aldana, the court addressed an MMRP system that required the clerk of the court to set a time and place for a hearing before a panel. The law required the panel to hold a hearing 120 days after the claim was filed, and no panel was to hear a case more than six months after a claim was filed.[22] If no hearing took place within a total of 10 months, the claim was sent immediately to trial. The court heard two consolidated cases – one from a doctor requesting an arbitration panel, and the other from a plaintiff who was required to wait 10 months before filing suit. The Florida Supreme Court ruled that the legislative scheme contained an “inflexible time limitation.”[23] It considered the 10-month deadline to be arbitrary.[24] Moreover, the court refused to construe the statute in a manner to provide flexibility, because it considered a longer jurisdictional period a denial of access to the courts.[25] In Florida, the problem therefore was with the legislatively drawn time period. Nothing about the MMRP system, per se, offended the state constitution.

Only Wyoming struck an MMRP provision as violating equal protection under its state constitution.[26] The Wyoming law required submission of medical malpractice claims to a panel comprising two health care professionals, two attorneys and one layperson. The conclusion of the panel was not admissible at trial.[27] In Hoem, the plaintiffs claimed that the MMRP requirement benefited doctors at the expense of medical malpractice plaintiffs. The court applied the reasonable basis standard to determine if the plaintiff’s claims were correct. The court found the link between medical panels and public health to be waning: “[W]e cannot condone the legislature’s use of the law to protect one class of people from financial difficulties while it dilutes the rights under the constitution of another class of people.”[28] Moreover, the court determined that medical malpractice litigation served the public by enhancing the quality of care.[29]

b. Right to Jury

The vast majority of courts to address MMRPs did not view them as an unconstitutional burden on plaintiffs’ right to a jury trial.[30] The majority of courts held that nonbinding panels may delay, but ultimately did not interfere with, the plaintiff’s ability to reach the jury. Moreover, most held that admitting the panel’s conclusion into evidence would not violate the right to a jury. The courts believed that the juries would treat the panel’s conclusion as they would any other expert testimony. The Alaska Supreme Court indicated that submitting a panel’s conclusion to the jury was a superior option, because it permitted the jury to decide the merits of that conclusion.[31]

The Pennsylvania Supreme Court declared that state’s MMRP provision as unconstitutional for burdening plaintiffs’ right to a jury trial.[32] In Mattos, the court relied on statistical studies that examined how the MMRP system worked for the two previous years. Citing delays of one to four years between filing and completion of the arbitration period, the court concluded that the grant of original jurisdiction to an MMRP violated the state constitutional guarantee of a right to a jury.[33]

c. Access to the Courts

Courts also have addressed challenges claiming that MMRPS unconstitutionally deny access to courts. Most courts rejected such attacks. Generally, they reasoned that juries and not panels made the final decisions; the discovery process could be ongoing during the arbitration phase, or any delays were not sufficiently long to deny access to the courts.[34]

Courts have not uniformly decided this issue. For example, in 1979 the Missouri Supreme Court invalidated the state’s MMRP system based on an access-to-courts challenge.[35] The Missouri system required courts to refer medical malpractice claims to arbitration panels. The panels comprised five members: a non-voting circuit court judge, two attorneys and two medical professionals. One of the medical professionals was required to be from the same specialty as the defendant health care provider.[36]The panel’s recommendation was not admissible into evidence.

The court held that the MMRP violated the plaintiff’s constitutional right of access to the court system. The court reasoned that the MMRP requirement interposed a jurisdictional delay on medical malpractice plaintiffs; this delay violated the plaintiffs’ “right to seek immediate redress in the courts.”[37] Importantly, the Missouri decision, unlike that in Pennsylvania, rejected the panels on the basis that any resulting delay was unconstitutional per se. The Gaertner decision did not examine actual delays to trial.[38]

Somewhat similarly, Arizona invalidated a provision of its MMRP law. The provision required a party appealing a panel decision to post a $2,000 bond to file the claim in court.[39] The court held that the bond requirement could deny the indigent access to courts. Additionally, the requirement placed an undue burden on non-indigent parties trying to reach a jury.[40] The court concluded that these requirements violated the privileges and immunities clause of the Arizona Constitution. Nevertheless, the Arizona court upheld the other provisions of the MMRP legislation.

d. Separation of Powers Doctrine

Only three state supreme courts – Arizona, Illinois and Indiana – heard challenges based on the separation of powers doctrine. The Arizona and Indiana courts upheld the MMRP system, while the Illinois Supreme Court declared its MMRP program constitutionally infirm. Arizona held that because the jury would ultimately make any final decision, pre-trial screening by an arbitration-like panel did not constitute an impermissible invasion of judicial power by the legislature.[41] Indiana’s court ruled on an admissibility of evidence question.[42] The Johnson court held that the MMRP established a rule of admissibility, a legislative determination, and not exclusion, which is a judicial province.[43]

The Illinois Supreme Court, however, invalidated the MMRP program as a violation of the separation of powers doctrine.[44] The Illinois MMRP system required the mandatory submission of medical malpractice cases to a panel comprising a circuit judge, practicing attorney, and a health care professional.[45] The panels were conducted openly, but their conclusions were not admissible into evidence. The panel would address liability and damages. The parties could agree at the outset to make the panel’s conclusion binding. The court held that the system was unconstitutional because it required the circuit court judge to share his judicial power with non-judicial members. For example, if the judge disagreed with the attorney and physician panel-members, the judge’s opinion must still give way.

2. The Potential Success of MMRPs in Georgia:

Georgia courts are likely to approve of an MMRP program if its statutory framework is carefully crafted. Current law suggests that mandatory, nonbinding arbitration could be acceptable to Georgia courts, and proposed federal legislation currently proposes aiding states that create an MMRP system.

The Georgia Supreme Court already has upheld a similar provision to many states’ MMRP provisions.[46] In Davis, the court examined the Fulton County Superior Court Local Rule 1000, which is available on the Georgia Public Policy Foundation’s Web site. That rule obligates plaintiffs in civil actions seeking damages less than $25,000 to submit to nonbinding arbitration before the court will hear the claim. Medical malpractice cases are currently exempted from the rule’s requirement. The panel is made up of three attorneys selected by the court. The clerk of the court has 180 days after filing to assign the panel, and to ensure that the panel met and made a recommendation. Any party may re-file with the Superior Court within 30 days after the arbitration panel’s recommendation. Importantly, the court may tax the arbitration panel’s fees on the party seeking trial if that party does not substantially improve its position. Substantial improvement is defined as reversal of an award, or an increase or decrease of the award by 15 percent or more.

In 1990, the Georgia Supreme Court heard a constitutional challenge to the rule.[47] In Davis, the plaintiff alleged that Local Rule 1000 unconstitutionally (1) levies a tax on parties; (2) denies access to the courts; (3) violates the separation of powers doctrine, and (4) classifies plaintiffs in violation of the equal protection clauses of the state and federal constitution. The Court dismissed the first claim based on O.C.G.A. § 9-15-1 (1990). That provision permitted courts to assess costs against the party that “dismisses, loses or is cast in the action.”[48] Justice Clarke wrote that Local Rule 1000 was similar to and consistent with O.C.G.A. § 9-15-1, and therefore constitutional.

The court also rejected the plaintiff’s right to a jury claim based on O.C.G.A. § 9-11-38 and Ga. Const. Art. I, s. I, Par. XI (1983). Those provisions codified the right to jury trial in the Code and Constitution of Georgia. The court differentiated Local Rule 1000 from other rules setting deadlines for jury demands.[49] The court then affirmed the constitutionality of the rule, holding that the constitutional right to a jury is satisfied if “at some stage of the case” the party desiring a jury trial “might obtain the benefit of such trial by compliance with reasonable conditions. If a trial by jury can be obtained on appeal, the constitutional provision is satisfied.”[50] Given this flexible interpretation, the court had little difficulty holding that Local Rule 1000 satisfied the constitutional requirement.

The court then dismissed the plaintiff’s separation of powers argument. The Davis plaintiff based its argument on the fact that the Superior Court created the rule, and not the General Assembly. The Supreme Court ruled that the rule involved procedural, not substantive law.[51] Consequently, the Superior Court was empowered to enforce the rule under Ga. Const. Art. VI, s. IX, P. I, which enables the courts to create local rules of procedure.[52]

Like the majority of other state courts addressing the issue, the Georgia Supreme Court dismissed the equal protection challenge. Justice Clarke held that the rule did not deny the right to a jury trial and created no “disparity in the treatment of various Fulton County litigants or between Fulton County litigants and litigants of other counties.”[53]Accordingly, the plaintiff could not state a claim for a violation of the equal protection clauses of the state or federal constitutions.

The reasoning in the Davis opinion is consistent with that in other states that upheld MMRP systems. Although the Local Rule 1000 specifically exempts medical malpractice claims from the arbitration requirement, there is nothing in the Court’s opinion limiting its holding to non-medical malpractice claims. Moreover, because any MMRP system could provide a jury trial as the ultimate disposition of a claim, plaintiffs should not be able to mount successful access-to-courts attacks.[54]

3. Potential Funding Source:

Current proposed federal legislation could ease a transition to an MMRP system. Senator Michael Enzi (R-Wyoming) sponsored the first tort reform package that failed to pass the Senate; that bill included caps on damages.[55] Currently, Senator Enzi sponsors S. 1518, which would provide grants for states to try alternatives to the current tort litigation system. The proposed legislation is available on the Georgia Public Policy Foundation’s Web site. Senator Enzi’s bill currently has no sponsors. It was introduced on July 31, 2003, which was late in the legislative term. MMRPs are included as a type of reform that could receive federal monies. S. 1518 requires the panel to include an official from the state licensing board, patient advocacy groups, health care providers, and an attorney practicing in the relevant area. If passed, this bill could supply the General Assembly with the financial ability to enact an MMRP system. The Davis decision seems to provide the constitutional support to do so.

Recommendation – Georgia Mandatory Medical Review Panels:

The Georgia General Assembly should enact an MMRP system. It would provide a fair means of decreasing litigation costs and insurance premiums. The number of claims that go to trial would be reduced and plaintiffs would still keep the judicial system as the final forum. The MMRP’s conclusion should include a determination of the case’s merits (either yes or no) and an assessment of any damages. Nonbinding MMRPs would not prevent plaintiffs from seeking a jury trial if they so desired, and a “substantial improvement” provision could require both sides of the dispute to carefully consider the prudence of litigation. Lastly, permitting the panel’s conclusion to be admitted at trial would enhance the fairness and effectiveness of the system, and would provide courts another source to assist in evaluating scientific issues.[56]

1. The Panels Should Be Mandatory

Almost all states that enacted MMRP provisions made them either a requirement of filing a medical malpractice claim, or required the formation of a panel once one party chose to utilize the MMRP process. Georgia should do the same. Of the 34 states that adopted an MMRP system, only Missouri struck the mandatory provision as unconstitutional per se.[57] The Missouri Supreme Court reasoned that the MMRP unconstitutionally delayed plaintiffs’ access to the courts.

A Georgia MMRP system would likely not be invalidated on due process, equal protection, right to jury, access to courts or separation of powers grounds. The reasoning behind the Davis decision forecloses many potential challenges, including due process, equal protection, and right to jury.[58] This is especially true if a proposed MMRP system adopts the same time requirements as Local Rule 1000.[59] The Davis decision did not address an access-to-courts challenge, but such an attack in Georgia probably would fail for two reasons.[60] First, the “sole purpose” of Georgia’s constitutional right to court access is to “protect the right of an individual to represent himself in the courts of this state.”[61] Second, the state constitutional guarantee of due process does not require “a particular form or method of procedure,” but only that the party has “reasonable notice and opportunity to be heard, and to present [its] claim or defense.”[62] Consequently an MMRP system should easily survive legal challenges based on due process, equal protection, right to a jury and access to courts.

2. Panel Composition and Evidence

Admittedly, the Davis decision did not consider a separation of powers claim. As seen in Illinois, however, the success of such challenges often turns on judicial involvement in the panel. State panel compositions vary widely. For example, Alaska’s system calls for three court-appointed physicians to serve on the panel.[63] The Arizona, New Jersey and Illinois legislatures passed systems that included a judge, attorney and physician on the panel.[64] Indiana and Louisiana require a panel of three physicians and a non-voting attorney.[65] The Missouri and Virginia systems called for panels composed of a judge, two attorneys and two physicians.[66] Ohio’s MMRP consisted of three attorneys: the court, the defendant and the plaintiff each chose a panel member.[67] Wyoming’s legislature enacted a system calling for two attorneys, two physicians and one layperson to be on the panel.[68]

Georgia should enact a plan that builds on other states’ experiences.[69] Currently, Fulton County Superior Court Local Rule 1000 calls for the random selection of arbitrators.[70] Attorneys must submit their names to the clerk to be considered for arbitration. To be considered for the position of the panel’s presiding Chief Arbitrator, the attorney must have at least five years of trial experience; all other attorneys are entered into a separate pool.[71]

Following the Rule 1000 example, any proposed MMRP legislation could avoid the constitutional infirmity of the Illinois system by prohibiting judicial participation on the panel.[72] A possible panel should consist of five members. Three physicians should be randomly selected from a pool similar to that currently used for attorneys with Rule 1000. Like the system enacted by Missouri, at least one physician should be from the same specialty as the defending doctor. Being available for service should be a condition to obtaining and renewing a state medical license. The panel should also include two randomly selected attorneys with some trial experience. Each side should be afforded one opportunity to strike a selected attorney. Panel members should be entitled to the same immunity as those involved in arbitration panels under Rule 1000. Additionally, panel members should not be compensated for one day of service on the panel. After that first day, panel members could be compensated reasonable fees.

Panels should also review only written evidence, such as the medical chart, affidavits and depositions. The limited review would focus the panel’s inquiry on objective evidence, thereby minimizing the evaluation of witness credibility and other, subjective criteria. Additionally, a focus on written evidence would reduce the amount of time a panel would need to make a recommendation. Louisiana enacted a similar system.[73]

3. The Panel Should Include A “Substantial Improvement” Provision

The MMRP needs to include some means of ensuring that parties do not view the MMRP as a mere pretrial formality. Parties that demand a trial after the MMRP’s decision should be required to take on some risk for rejecting the panel’s conclusion. Local Rule 1000 provides a guide. It permits any party to demand a jury trial after a panel’s decision. If the demanding party does not achieve a (1) reversal of the award, or (2) increase or decrease of damages by 15 percent, then that demanding party will be assessed the fees of arbitration.[74] Importantly, the Davis court rejected an attack on the “substantial improvement” portion of Local Rule 1000.[75] The MMRP provision should include the “substantial improvement” language of the rule. It should also make court costs and reasonable attorney’s fees available to a party that would be awarded fees under Local Rule 1000. Litigants should be required to wait 30 days after the finding in order to mediate and confer on the panel’s finding.

4. The Panel’s Conclusion Should Be Admissible At A Subsequent Trial

Many states permit the panel’s conclusion to be admissible at a subsequent trial.[76] Georgia should do so, too, based on the reasoning of the Alaska Supreme Court in theKeyes decision.[77] That court concluded that it was fairer to the party challenging the panel’s conclusion to permit the conclusion to be introduced as evidence at trial. Admissibility provides for several safeguards, including the introduction of any dissent or concurring opinion, questioning of the report before the jury, and calling panel members to testify before the jury. The Alaska system treats the panel’s conclusion as a type of expert testimony that both parties would need regardless of the MMRP.

Fulton County Superior Court Local Rule 1000 already permits the introduction of the panel’s finding into evidence.[78] Additionally, documents presented to the panel are subject to discovery. The panel members, however, are not permitted to testify at a later trial, nor are their notes discoverable. An MMRP proposal should follow the Alaska model. It is identical to Local Rule 1000, but it permits panel members to be questioned at trial. The Alaska model put a substantial amount of trust in juries to be able to accept the panel recommendation as simply another piece of evidence; a Georgia proposal should do the same.

Conclusion:

The medical malpractice crisis in Georgia requires action. Other states successfully avoided Georgia’s current crisis by enacting a mandatory medical malpractice panels system. The panels provide a fair and successful means of combating rising insurance premiums. They will increase settlements, thereby lowering legal fees associated with medical malpractice lawsuits. Panel damages will probably be more in tune with actual harm. A “substantial improvement” provision would likely cause the number of trials to drop as well.

These reforms are possible in Georgia. The Supreme Court upheld a very similar system in 1990. The General Assembly could now follow the Superior Court of Fulton County’s lead, and pass a state-wide mandatory medical malpractice panels program. It should do so to improve the health of all Georgians.

[1] Susan Laccetti Meyers, Medical Crisis: Malpractice Premiums on a Rocket Ride, ATLANTA J. & CONST., Aug. 11, 2002, at Q.1.

[2] Id.

[3] Julie Bryant, AMA Calls Georgia a “Crisis” State, ATL. BUS. CHRON., Jun. 18, 2003, available at http://atlanta.bizjournals.com/atlanta/stories/2002/06/17/daily21.html

[4] “America’s Liability Crisis: A National View,” American Medical Association (2003), available at http://www.ama-assn.org/ama1/pub/upload/mm/-1/med_liab_19stat.pdf

[5] Meyers, supra note 1.

[6] Governor Decries Physicians’ Walkout, CNN.COM, Jan. 2, 2003, available at http://www.cnn.com/2003/HEALTH/01/02/doctors.strike.

[7] Alan Plummer, Medical Liability In Georgia: The Crisis is Now, 5 MOMENTUM 3 (Winter 2003) available at http://www.emory.edu/WHSC/HSNEWS/PUB/Momentum/Winter03/onpoint.html

[8] Meyers, supra note 1.

[9] Plummer, supra note 7.

[10] Meyers, supra note 1.

[11] Bryant, supra note 3.

[12] Plummer, supra note 7.

[13] Julie Bryant, Inside Hospitals, A Climate Of Fear, ATLANTA BUS. CHRON., Sept. 15, 2003, available at http://www.bizjournals.com/atlanta/stories/2003/09/15/story4.html.

[14] Meyers, supra note 1.

[15] Id.

[16] See, e.g., Alaska Stat. Sec. 09.55.536 (Alaska); A.R.S. §§ 12-567 et. seq. (Arizona) (repealed by legislature); Colo. Rev. Stat. Sec. 13-22-311 (Colorado); Conn. Gen. Stat. Sec. 38-19c; 38-19f (Connecticut); Del. Code Ann. Tit. 18, Sec. 6801 to 6814 (Delaware); Fla. Stat. § 768.44(3) (Florida) (invalidated by judiciary); Hawaii Rev. Stat. 671-11 to 671-20 (Hawaii); Idaho Code 6-1001 to 10011 (Idaho); Ill. Rev. Stat. 1985ch. 110 par. 2-2010 et. seq. (Illinois) (invalidated by judiciary and repealed by legislature); Ind. Code 16-9.5-9-1 to –10 (Indiana); Kan. Stat. Ann. 65-4901 et. seq. (Kansas); La. Rev. Stat. Ann. 40:1299.49 (Louisiana); Me. Rev. Stat. Ann. Tit. 24, 2851-2853 (Maine); Md. Cts. & Jud. Proc. Code Ann. 5-109 (Maryland); Mass. Gen. Laws Ann. Ch. 231,608 (Massachusetts); MI. ST. Ch. 600 Ch. 49 (Michigan); RSMo. Supp. 538.010 et. seq. (Missouri) (invalidated by judiciary); Mont. Code Ann. 27-6-101 to 704 (Montana); Neb. Rev. Stat. 44-2825 (Nebraska); Nev. Rev. Stat. 41A.003-069 (Nevada) (repealed by legislative sunset provision); 1972 N.H. Rev. Stat. Ann. 5198-A:1 to A:10 (New Hampshire); N.J.C.P.R. 4.21-1 to 4.21-8 (New Jersey) (repealed by legislature); N.M. Stat. Ann. 41-5-14 to 41-5-20 (New Mexico); Judiciary Law § 148-a (New York) (repealed by legislature); N.D. Cent. Code 26-40.1 et. seq. (North Dakota) (repealed by legislature); Ohio Rev. Code Ann. 2711.21 (Ohio); Pa. Stat. Ann. Tit. 40, 1301.308 (Pennsylvania); Tenn. Code Ann. 29-26-101, 114 (Tennessee) (repealed by legislature); Utah Code Ann. 78-14-16 (Utah); Va. Code 8.01-581 et. seq. (Virginia); Wisc. Stat. 655.42 et. seq. (Wisconsin) (repealed by legislature); and Wyo. Stat. 9-2-1701 to 1712 (Wyoming) (repealed by legislature).

[17] Those states are Connecticut, Ohio and Pennsylvania.

[18] The crisis states where MMRPs were repealed are: Arkansas (legislative repeal); Florida (judicial repeal); Illinois (legislative and judicial repeal); Missouri (judicial repeal); Nevada (legislative, sunset provision); New Jersey (legislative repeal); New York (legislative repeal); Wyoming (judicial repeal). See, supra note 16.

[19] The Georgia Public Policy Foundation’s website provides short case summaries for those courts that addressed the constitutionality of a MMRP system, and the information in a spreadsheet format.

[20] See, e.g. Keyes v. Humana Hosp. Alaska, 750 P.2d 343 (Alaska 1988); Treyball v. Clark, 493 N.Y.S.2d 1004, 483 N.E.2d 1136 (N.Y. 1985) (upholding medical panel requirement); Perna v. Pirozzi, 457 A.2d 431 (N.J. 1983) (upholding medical panel requirement); Beatty v. Akron City Hosp., 424 N.E.2d 586 (Ohio 1981) (upholding mandatory medical panels); Johnson v. St. Vincent Hosp. Inc., 404 N.E.2d 585 (Ind. 1980) (upholding mandatory medical review panels) (abrogated in part by Collins v. Day, 644 N.E.2d 72 (Ind. 1994) (changing standard of review for equal protection and state special legislation matters)); Everett v. Goldman, 359 So.2d 1256 (La. 1978) (upholding medical review panel legislation); and Eastin v. Broomfield, 570 P.2d 744 (Ariz. 1977).

[21] Aldana v. Holub, 281 So.2d 231 (Fla. 1980) (overturning Carter v. Sparkman, 335 So.2d 802 (Fla. 1976)).

[22] Fla. Stat. § 768.44(3) (1979).

[23] Aldana, 281 So.2d at 236.

[24] Id. at 238.

[25] Id.

[26] Hoem v. State, 756 P.2d 780 (Wyo. 1988).

[27] W.S.1977 § 9-2-1501 et seq.

[28] 756 So.2d at 784.

[29] Id.

[30] See, e.g., Speet v. Bacaj, 377 S.E.2d 397 (Va. 1989); Keyes, 750 P.2d at 343 (Alaska); Treyball v. Clark, 493 N.Y.S.2d at 1004, 483 N.E.2d at 1136 (New York); Perna, 457 A.2d at 431 (New Jersey); Beatty, 424 N.E.2d at 586 (Ohio); Johnson, 404 N.E.2d at 585 (Indiana); and Eastin, 570 P.2d at 744 (Louisiana).

[31] Keyes, 750 P.2d at 350 (Alaska).

[32] Mattos v. Thompson, 421 A.2d 190 (Pa. 1980).

[33] Id. at 196.

[34] See, e.g., Johnson, 404 N.E.2d at 585 (Indiana); Everett, 359 So.2d at 1256 (Louisiana).

[35] Cardinal Glennon Mem’l Hosp. for Children v. Gaertner, 583 S.W.2d 107 (Mo. 1979).

[36] RSMo. Supp. 538.010 et. seq. (1976).

[37] Gaertner, 583 S.W. at 110.

[38] Id.

[39] Eastin, 570 P.2d at 744.

[40] Id. at 754.

[41] Eastin, 570 P.2d at 750.

[42] Johnson, 404 N.E.2d at 598.

[43] Id.

[44] Bernier v. Burris, 497 N.E. 763 (Ill. 1986).

[45] Ill. Rev. Stat. 1985 ch. 110 par. 2-2010 et. seq. (1986).

[46] Davis v. Gaona, 260 Ga. 450, 396 S.E.2d 218 (1990) (available on the Georgia Public Policy Foundation’s website).

[47] Id., at 260 Ga. at 450, 396 S.E.2d at 218.

[48] Id., at 260 Ga. at 452, 396 S.E.2d at 220.

[49] See, Raintree Farms, Inc. v. Stripping Ctr. Ltd., 166 Ga. App. 848, 305 S.E.2d 660 (1983) (striking a local rule that denied a jury trial if one was not demanded on or before the last day before trial).

[50] Davis, 260 Ga. at 453, 396 S.E.2d at 220 – 21 (citations omitted).

[51] Davis, 260 Ga. at 453, 396 S.E.2d at 221.

[52] The provision provides: “The judicial system shall be administered as provided in this Paragraph. Not more than 24 months after the effective date hereof, and from time to time thereafter by amendment, the Supreme Court shall, with the advice and consent of the council of the affected class or classes of trial courts, by order adopt and publish uniform court rules and record-keeping rules which shall provide for the speedy, efficient, and inexpensive resolution of disputes and prosecutions. Each council shall be comprised of all of the judges of the courts of that class.”

[53] Davis, 260 Ga. at 453, 396 S.E.2d at 221.

[54] See, Zorn v. Walker, 206 Ga. 181, 56 S.E.2d 511 (1949) (holding that the Georgia Constitution does not mandate “any particular form or method of state procedure,” but instead requires that parties have “reasonable notice and opportunity to be heard”) (citing Ga. Const. Art. I, s I, P. XII (1983)).

[55] S. 1518, 108^th Cong. (2003).

[56] Georgia law requires expert testimony in medical malpractice cases. Blount v. Moore, 159 Ga. App. 80, 81, 282 S.E.2d 720, 721 (1981). Federal law permits the court to appoint an expert to determine various issues of fact. See, FED. R. EVID. 706. The MMRP provides both potential litigants and the court with another basis of expert opinion. Note, the Virginia Supreme Court specifically rejected the idea of substituting the panel’s conclusion for an expert witness. Speet, 377 S.E.2d at 397. As recognized by that court, however, the panel’s finding need not be a substitute of evidence, but provides the jury with more information from which it can base its verdict.

[57] Gaertner, 583 S.W.2d at 107.

[58] Davis, 260 Ga. at 450, 396 S.E.2d at 218.

[59] See, Aldana, 281 So.2d at 231 (striking Florida’s system for inflexible and unworkable time constraints).

[60] 260 Ga. at 450, 396 S.E.2d at 218.

[61] Nelms v. Georgian Manor Condo. Assoc., Inc., 253 Ga. 410, 413, 321 S.E.2d 330, 333 (1984) (emphasis added) (interpreting Ga. CONST. art. I, § 1, par. XII (1983)).

[62] Cobb County Sch. Dist. v. Barker, 271 Ga. 35, 37, 518 S.E.2d 126, 129 (1999) (citing Zorn, 206 Ga. at 181, 56 S.E.2d at 511).

[63] Alaska Stat. Sec. 09.55.536.

[64] Ariz. Rev. Stat. § 12-567 et. seq. (Arizona), N.J.C.P.R. 4.21-1 to 4.21-8 (New Jersey); Ill. Rev. Stat. 1985 ch. 110 par. 2-2010 et. seq. (Illinois).

[65] Ind. Code 16-9.5-9-1 to –10 (Indiana); La. Rev. Stat. Ann. 40:1299.49 (Louisiana).

[66] RSMo. Supp. 538.010 et. seq. (Missouri); Va. Code 8.01-581 et. seq. (Virginia).

[67] Ohio Rev. Code Ann. 2711.21.

[68] Wyo. Stat. 9-2-1701 to 1712.

[69] As drafted, the Enzi legislation calls for a panel comprised of representatives from the relevant State licensing board, patient advocacy groups, health care providers and health care organizations, and attorneys in relevant practice areas. S. 1518, 108^th Cong. § 3 (2003). There still appears some flexibility in the language.

[70] Fulton County Super. Ct. Rule 1000 (1997).

[71] Id.

[72] Bernier, 497 N.E. at 763 (declaring MMRP’s unconstitutional because potential of judge’s conclusion to be vetoed by other panel members).

[73] La. Rev. Stat. Ann. 40:1299.49. Most states, however, empowered panels to call witnesses and hear testimony. While this is certainly an option, it does increase the cost and time of the panel process. See, Alaska Stat. Sec. 09.55.536 (Alaska); Ill. Rev. Stat. 1985 ch. 110 par. 2-2010 et. seq. (Illinois); Ind. Code 16-9.5-9-1 to –10 (Indiana); RSMo. Supp. 538.010 et. seq. (Missouri); N.J.C.P.R. 4.21-1 to 4.21-8 (New Jersey); Ohio Rev. Code Ann. 2711.21 (Ohio); and Wyo. Stat. 9-2-1701 to 1712 (Wyoming).

[74] Fulton County Super. Ct. Rule 1000(13k) (1997).

[75] 260 Ga. at 451 – 2, 396 S.E.2d at 220. The plaintiff if that case attacked the “substantial improvement” provision as inconsistent with O.C.G.A. § 9-15-1, which creates liability for court costs against a losing party. Chief Justice Clarke viewed the moving party that does not increase their position as “a loser within the scheme of the arbitration project,” thereby reading the Rule as consistent with the statute. Id. The same reasoning could apply to a similar provision in a MMRP plan.

[76] See, e.g., Alaska, Arizona, Delaware, Indiana, Kansas, Maryland, Massachusetts, North Dakota, Pennsylvania, Tennessee, Virginia, Wisconsin (but not damages) supra note 16. Maine, New Jersey and New York’s systems permit only unanimous conclusions to be submitted, supra note 16.

[77] 750 P.2d at 346 – 349.

[78] Fulton County Super. Ct. Rule 1000(8) (1997).

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.