Editorial: A Win For Malpractice Victims

By Angela Speir Phelps and Danny Orrock

There’s been a lot of chatter about the Supreme Court of Georgia’s decision to overturn caps on damages for victims of medical malpractice. It’s understandable this would generate interest, since it affects our most basic rights as citizens.

In 2005, Senate Bill 3 was heralded as a fix for many of the ills facing the health care industry. Despite the promises of tort reform proponents, doctors have not stampeded into Georgia, medical liability insurance premiums have not come down and competition in the medical liability market has not increased.

What Senate Bill 3 has done is limit accountability for medical negligence and padded the profit margins of large insurers.

Let’s set the record straight on the number of doctors in Georgia. According to the American Medical Association, the largest doctor organization in the country, the number of doctors per capita in Georgia did not change between 2005, when SB 3 passed, and 2008. Any increases in the number of doctors have matched population growth.

Quite simply, access to care in Georgia was not improved by SB 3. Doctors have not rushed into our state over the past five years and medical liability insurance rates have not markedly improved in that time. According to the Medical Liability Monitor, a trade publication, the average medical malpractice insurance premium increased by 145 percent between the years of 2001 and 2005. Doctors were understandably eager for some relief from such price gouging.

But since SB 3 passed, the average premium fell by only 7 percent. So even after successfully pushing for legislation that tramples on the rights of injured patients, doctors are still stuck paying exorbitant premiums for coverage that they must have to practice.

In addition to high premiums, health care professionals in Georgia only have a limited number of liability insurers to choose from. Information from the Insurance Commissioner’s office shows that since the passage of SB 3 in 2005, competition in Georgia hasn’t increased. That year, there were 139 licensed medical liability insurers in Georgia. In 2009, there were 138.

In 2005, the largest insurer of doctors, MAG Mutual, had 41.1 percent of the market. MAG Mutual is still the largest, and now controls 40.8 percent of the market.

If the legislature wants to reduce malpractice premiums, they can start by taking steps to reduce malpractice.

According to the Institute of Medicine, medical errors kill roughly 98,000 people in America every year. Simple measures like requiring doctors and hospitals to utilize checklists during procedures will reduce preventable harm. Additionally, a uniform electronic medical records requirement will allow health care providers to get accurate and timely information on patients, reducing the likelihood of errors.

SB 3 failed miserably at reducing liability insurance premiums and increasing competition, but it was wildly successful at limiting our fundamental rights. Our state and U.S. constitution guarantee that people who are harmed by others have a right to a trial by jury. But by passing SB 3 in 2005, the legislature took away the jury’s ability to make a decision based on the facts.

For victims of medical malpractice and their families, caps on damages is really a trial by the 2005 Georgia Legislature, which set an arbitrary cap of $350,000 on non-economic damages.

Consider the case of Betty Nestlehutt, who was severely harmed through medical negligence. After hearing testimony and seeing the evidence of Mrs. Nestlehutt’s permanently disfigured face, the jury returned a verdict that was higher than the one-size-fits-all cap imposed by SB 3.

That law mandates that a victim of malpractice, no matter how egregious their injury, cannot recover more than the cap set by the legislature, thus ignoring the ability of the jury to render a fair decision. It substitutes the judgment of the 2005 legislature for that of the jury. Even if Mrs. Nestlehutt had lost her life, the negligent defendant would only be liable for $350,000 in non-economic damages.

In a unanimous decision, our state Supreme Court overturned caps on damages, stopping the government from treading on the rights of malpractice victims and citizen juries. Our founding fathers recognized that heavy-handed government intervention poses a threat to individual rights. Thankfully, that core principle still stands in Georgia.

Angela Speir Phelps is executive director of Georgia Watch, a consumer watchdog group . Danny Orrock is deputy director.

[Note: This appeared Saturday, 01 May 2010, in the Savannah Morning News.]

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