Georgia lawmakers are trying to change the language of the state’s ground-breaking tort reform statutes. The move would bring Geogia’s tort standard, reformed two years, more in line with other states.
For the last two years, the tort situation in Georgia has been quite a success. The changes were extensive, with some features that are unique to Georgia and very favorable to emergency physicians. In addition to the typical caps on pain and suffering damages, Georgia’s tort reform was ground breaking in that:
(1) The level of culpability needed to support liability was increased from negligence to gross negligence
(2) The burden of proof was increased from a preponderance of evidence to clear and convincing evidence
(3) Special jury instructions were created which require the court to instruct the jury to give consideration to whether or not there was a preexisting doctor-patient relationship, whether there was the ability for the health provider to have a full medical history of the patient, and to use in their deliberation the special circumstance constituting the emergency and the delivery of emergency medical care.
This tort reform was passed in Georgia about two years ago and since then the number of lawsuits against physicians has gone down dramatically. In addition, the number of lawsuits won by physicians since that time has risen to over 90%. This is a one-of-a-kind law in Georgia that is particularly supportive of emergency physicians and those on call for the emergency department.
This bears repeating. The law states that there can be no liability for damages “unless it is proven by clear and convincing evidence that the physician or health care provider’s actions showed gross negligence.” The rest of the country uses “standard of care” as the yardstick, and so Georgia’s new law proposal would bring it in line with the laws in other states. However, part of what made this new tort so wonderful for physicians in Georgia was the “showed gross negligence” statute. This is because gross negligence is much harder to prove, and thus, the number of lawsuits filed against emergency physicians went down dramatically.
Now it seems that some Georgia lawmakers are trying to amend the current law to change “showed gross negligence” to “failed to meet applicable standard of care.”
While this change would bring it in line with the rest of the country in terms of tort language, it would likely increase rates for med mal insurance that were finally decreasing. Prior to the tort reform established two years ago, Georgia was down to one doctor-owned med mal insurer MAG Mutual. Since the reform, Georgia has a competitive med mal insurance market with multiple insurers. And the competition has brought prices for med mal insurance down dramatically.
Rather than see a roll-back of the current law, EPs hope that the current Georgia standard would be emulated in states around the country. It would be unfortunate to regress at this critical juncture where problems of access to adequate emergency services are already at crisis levels.