Tort Reform: Medical Malpractice Crisis

On October 23rd, students heard about Tort Reform in the Medical Malpractice field through a program sponsored by the Student Health Law, Student Trial Lawyers, and the Lesbian/Gay Law Students Associations. Attorneys Marilyn Allen of MAG Mutual Insurance, Bill Clark of the Georgia Trial Lawyers Association, and David McLean of Sutherland, Asbill & Brennan shared their expertise on problems they encounter and changes being proposed to the current Georgia Legislature to handle medical malpractice issues.

What is Tort Reform? Why is it needed?
Marilyn Allen explained what tort reform means, why it is needed, and what is being proposed. Tort Reforms are measures enacted by the State Legislature to correct the non-legal system, Statutes of Limitations, and apportionment of damages in the Medical Malpractice field. Ms. Allen listed factors supporting why tort reform is necessary. First, to "balance the playing field." If there are no tort reforms, there is the risk of less access to affordable health care for all citizens. Second, without tort reforms, physicians are discouraged from coming to Georgia. Third, the way things stand now discourages medical students from specializing in fields such as radiology and obstetrics– which normally have higher malpractice insurance premiums. Finally, the system currently encourages early retirement and discourages physicians from performing
certain specialized procedures.

What is proposed?
The new proposed legislation suggests the following steps:

Establishing Expert Witness Qualifications. Currently, any doctor can testify as an expert regardless of specialty.
Dismissal Rule to be amended. Currently, the plaintiff can dismiss the lawsuit at any time, for any reason, up to 2 times before the trial. Defendant does not have the same right.
Elimination of the joint / several liability holding each defendant responsible for 100% of the negligence action.
Mandate comparative negligence. Reduce award by patient’s contribution to his injury.
Cap total damages (economic and non-economic at $1,000,000).
Limit attorney’s fees based on sliding scale.

How Hospitals are Affected
David McLean of Sutherland defends hospitals throughout the state of Georgia against medical malpractice claims. He explained that the current medical malpractice crisis is twofold; it reduces availability as insurers no longer wish to write policies for hospitals and those insurers that remain to write policies for hospitals make their premiums so high that few hospitals can afford the policies offered.

McLean argues that hospitals are made up of PEOPLE. The physicians and nurses most of the time do a fantastic job and want to improve care given to patients. Sometimes there are bad outcomes and patients suffering such should have remedies, yet still allow the hospitals affordable coverage. There is no easy fix when considering both the providers' and patients' hardships.

The Other Side
Bill Clark of the Trial Lawyers presented the other side of the medical malpractice crisis. Mr. Clark left MAG and joined the Trial Lawyers as he disagrees with MAG’s position on Tort Reform. He agrees there IS a crisis – but the cause is not a litigious environment and large jury verdicts.

The problem stems from insurance companies raising premiums to make up losses from the 90s market. Insurance companies make money two ways, through premiums and investment earnings. Although insurance companies are now 90% invested in the Bond Market, they previously were heavily invested in the stock market and lost money when expected returns did not come through.

In order to gain a higher client base and build their businesses in the 90s, insurance companies lowered premiums almost 20-30%. Profits were high and payouts were low. Now, profits are not as high due to changes in the stock market and a higher number of claims to pay out. Problems have arisen with insurance companies trying to recoup the losses suffered in the 90s in a 2-3 year window by raising premiums.

Mr. Clark argues that Tort Reform would change the method by which the victims get justice. He claims, "Every time there is a claim of negligence, and there is a question as to the standard of care, the scales tilt in favor of the profession. The jury has to presume there was due care going in, and the patient already has to overcome many obstacles. Currently in 85% of the cases, the doctor wins … if the law were to change the odds would be even further stacked in favor of the profession."

Pictured Above: David McLean, Marilyn Allen, and Bill Clark