Georgia is one of a few states that has overturned damage caps (aka “tort reform”), declaring them “unconstitutional” and in violation of the right to a trial by jury, yet now victims are in jeopardy of losing those same rights. The latest assault on Georgia’s Constitutional Rights is Senate Bill 141 – the so-called Patient Injury Act. But, despite its name, the organization behind SB 141 is not a patient advocacy organization.
Leading the effort under SB141 which would lock the courtroom doors for Georgia patients injured as a result of medical malpractice is Senator Brandon Beach(R). Under the proposed bill, the current tort system in Georgia would be entirely scrapped and replaced with a no-blame, administrative compensation system. When a patient is harmed by a doctor, instead of a trial by jury of one’s own peers, injured patients would file a claim for review by a panel of medical experts (each panel consists of doctors, nurses, hospital administrators and other certified medical professionals); cases would be decided by healthcare providers sitting in judgment of their colleagues. If the injured patient is determined to be eligible for compensation, the Compensation Department will award damages based upon an approved fee schedule.
Supporters of this bill say it will benefit patients, taxpayers, and healthcare providers by eliminating defensive medicine and giving more injured patients’ access to justice and compensation for their injury. First of all, there is no such thing as “defensive medicine.” Doctors argue that they must fight daily with profit-driven insurance companies for permission to provide necessary treatment; how is it that excessive tests and procedures are being performed? Tests are either necessary to determine if there is a problem or they are not. If a test is performed that is not necessary isn’t that fraud? Overcharging patients? Doctors should always choose the best healthcare for their patients; that includes all necessary tests and procedures. Unnecessary testing does not prevent medical malpractice. Secondly, why do we need the Patient Injury Act to provide access to justice and compensation; isn’t that what our court system does?
Who do you want to decide your case – a jury of your peers or the peers of your wrongdoer? Medical malpractice lawsuits are not the reason for increased healthcare costs and medical malpractice victims will not benefit under the Patient Injury Act. The best way to reduce malpractice premiums will always be by reducing incidents of malpractice. And, the best way for a victim of medical negligence to seek justice is a trial by jury, with an impartial judge. Like tort reform, Senate Bill 141 will limit the awards victims can receive and it will reduce the amounts that the guilty should pay. Wouldn’t such a system encourage medical malpractice? If it is cheap enough to remain unsafe and to cover-up misconduct, why not do so? We need to stop this attempt to increase corporate profit at the expense of the injured and disabled in our society and the American taxpayer.
Georgia voters – don’t be fooled by this “no responsibility”, no access to justice proposal. Would you stand for a legal system in which lawyers sat in judgment of fellow lawyers sued for legal malpractice? Don’t victims of medical malpractice deserve the same rights to a jury of their peers as a victim of an auto accident, or a gas can explosion? Stop this bureaucracy; take a stand and shield this assault on your Constitutional rights. Find out where your local or state representative stands on this issue. Are they restricting your rights in support corporate profits? If so, kick them out of office!
Headline Image Source: flickr/Boston Public Library
@thumbnail.jpg "Mark M. Bello")
Experienced attorney, lawsuit funding expert, certified civil mediator, and award-winning author of the Zachary Blake Legal Thriller Series. The series features super-trial lawyer Zachary Blake handling "ripped from the headlines" legal and political issues of the day. The series currently consists of Betrayal of Faith, Betrayal of Justice, Betrayal in Blue, Betrayal in Black, and Betrayal High, with a sixth Zachary Blake novel due out later this year. To learn more about these topical social justice legal thrillers. please visit markmbello.com. Mark is a member of the State Bar of Michigan, a sustaining member of the Michigan Association for Justice, and a member of the American Association for Justice.
12 Comments
jc
I strongly support Sen. Brandon Beach and SB 141 introduced in the Georgia Senate. Sen. Beach wants to scrap the current medical legal system and replace this corrupt system with medical courts. Lets face it, Mark Bello and his crony plaintiff attorneys have failed patients. Plaintiff attorneys lose 85% of their cases that they bring to trial, a failure rate unmatched in American Industry! In previous posts, Mark Bello lied to this blog and said that "90% of medical malpractice cases are settled favorably to the patient" The Medical Protective Co, and The Doctors Co (the two largest American malpractice carriers) dispute Mark Bello and have said that 80-85% of these cases against their insured doctors are dropped without payment. The figures that I have recited above are even worse than they first appear. Because it can cost a plaintiff attorney $100+K to bring a medical malpractice case to trial and because plaintiff attorneys typically charge their clients a 40% contingency fee, the poor patient has to win at least $150K at trial before he gets a penny of the award. Oh, Mark also forgot to mention that the current medical malpractice system takes years (and sometimes a decade!) to adjudicate cases leaving both victims, the patient and the doctor, in legal limbo for years!
Lets face it, most lawyers and judges do not have the expertise to handle these cases. That is why it takes years to resolve the cases because the plaintiff attorneys and judges do not know anything about medicine. We need medical courts who can promptly hear these cases and make a decision in months- -not years. Patients, and innocent doctors need to be fairly and quickly treated and reasonable awards need to be given to the patients, not the plaintiff attorneys! Medical courts could be constructed to compansionately adjudicate these issues. I believe that more patients, who are injured or think they were injured, would avail themselves of a medical court system as opposed to the current corrupt and inefficient medical legal system which Mark Bello so passionately and financially defends.
Finally, with Obamacare, the USA is headed into a socialized medical system. We must become more efficent in both the delivery of medical care and the adjudication of patients who are injured. No country with socialized medicine can tolerate or afford the corrupt medical malpractice system we currently have.
Jake
JC: The reason it costs so much to pursue a malpractice case is because bad doctors and insurance companies put forth so many frivolous defenses to defeat them. That's also why the vast majority of cases are handled by attorneys who have significant expertise in handling them. You keep trotting out the same tired and false statistics. I am certain that no one who reads the Legal Examiner is surprised that you are a "strong supporter" of this senator and this legislation. How much money have you contributed to his campaign? If a drunk driver slammed into your car and damaged your hands to the point where you couldn't practice medicine anymore, would you want him to benefit from this type of legislation? Then why would you support a bailout for a drunk doctor who screwed up a surgery? Pretty selfish for a doc to ask for special treatment that other don't enjoy, don't you think?
jc
Jake: Thru June, The Doctors Co has tried 264 cases since 01/01/2013 with a 91% win ration, up from last year when they had an 88% win ratio. The Medical Protective Co reports a 94% win ratio. So when I say that docs win 80-85% of their cases, I am probably conservative. The Medical Protective Co and the Doctors Co report that 85% and 80% of claims against their insured docs are dropped without payment. These are the most reliable facts out there, far better than Mark Bello's unsupported statement that "90% of malpractice claims are resolved favorably to the plaintiff." It is a fact that the minute after a lawyer receives the letter notifying him that he passed the state bar, he can file a medical malpractice suit against a doctor- - -do you dispute this fact? I have been sued by novice attorneys like this, and ofcourse, they eventually dropped their lawsuits (In one case it took 6 years!). Lets face it, the adversarial medical malpractice legal system is a relic from the past, when we used to put leeches on patients to suck out the bad blood. Medicine has progressed, but the legal system is mired in the 19th century - -we need revamped medical courts so that we can get the plaintiff attorneys (leeches) out!
Mark Bello
Dr. Cox: You didn't answer Jake's question. Why should a drunk doctor get a bail out from the government when he botches a surgery? Why should any doctor who has devastated the life of a patient or his family? By the way, a visit to the websites of Medical Protective and the Doctors Company will help you understand what I have been saying. These "statistics" are puffed to sell malpractice insurance to doctors. Read carefully; they include cases that are immediately dropped and ignore many cases that are settled, pre-suit and pre-trial. They also brag about "wins" in tough cases that they think other insurance companies might pay. Their "boasts" are hardly evidence of the rampant junk claims you are always complaining about. And, their statistics come from a biased point of view, don't you think? Here is a statistic for you: Almost 100,000 people a year die from preventable medical errors. These errors are the sixth leading cause of death in the U.S. This is 9 times higher than deaths caused by guns in this country. And you want to provide a government handout to the dangerous docs who caused those deaths? Shame on you! Now answer Jake's question, if you dare! Why should a negligent drunk doctor get a bailout for killing his patient?
jc
Jake and Mark: A drunk driver who ran into a my car and injured me to the point that I could not perform surgery would be prosecuted for driving under the influence of alcohol, which is a felony. He would get a speedy trial and then possibly face me in civil court. If he was so irresponsible to be DUI, I would doubt that he had auto insurance and it would be doubtful that I could recover anything. That's life in USA. If a drunk doctor botched a surgery, that is not a felony, but there would be repercussions. The hospital medical staff would investigate and there would be a state medical board action against his license with manditory rehab. I am not advocating that the doctor should be cleared, I am saying that the doctor should be subject to medical courts to adjudicate damages to the patient. Why should this happen instead of going thru the current court system. The patient would be rapidly and fairly treated, within months - -not years! Since plaintiff attorneys lose 85% of their malpractice cases at trial, (In the Doctors Co, Northeast Region 147 cases were tried this year with only 8 plaintiff verdicts) it is unlikely that a plaintiff attorney could win at trial. But a medical court would probably see the error and provide compensation to the patient. Remember, currently, after years of litigation, if a patient would win a case, he would get nothing, unless the jury award was greater than $150K. This is due to litigation costs (100K per case) and plaintiff attorney contingency fees (40%). It is for these reasons, and more, that I believe we should junk the current malpractice legal system and go for medical courts.
jc
Mark, I want to answer your allegations regarding settlements. You claim, "90% of malpractice claims are settled, favorably to the plaintiff." The fact of the matter is that it is easy to look at malpractice trials and the verdicts and calculate a win loss ratio as these statistics are available in many states. What they show is that plaintiff attorneys lose at least 80-85% of the time. I do not know where there are accurate statistics regarding the number of filed claims vs settlements to determine the percentage of cases that are settled for some sum of money pre-trial. I can tell you that in my group medical practice, that over 25 years there have been 27 medical malpractice cases with 4 settlements and one on going case. (The on going case had a jury defense verdict 5 years ago and a Summary Judgement for the defense 6 months ago and is currently under appeal again.) I can tell you that The Doctors Company claims that over 80% of their cases are dropped without payment. In my speciality, The Medical Protective Co. says that 78% of cases are dropped, and overall 85% of cases are dropped without payment. Now you may object to the statistics put forth by the Doctors Co and the Medical Protective Co as just advertizing "puff". But I would argue that your claim that "90% of medical malpractice claims are settled, favorably to the plaintiff," is also advertizing "puff" to encourage malpractice litigation and protect your livelihood against legislative changes in the current medical malpractice system. But as Obamacare changes medicine, changes will have to occur to the medical malpractice litigation system. Why is it that if a stockbroker steals money out of my brokerage account, I have to go thru arbitration. Why can't I just sue Merrill Lynch in state court? I have given up my right to sue Merrill Lynch so that the US economy can economically raise money to support business. Why shouldn't we have medical courts so that doctors can get reasonably priced malpractice insurance, so that patients can get reasonably priced medical services and so that injured patients and innocent doctors can compensated and cleared in a reasonable period of time, in a fair way?
Jessica
JC: As usual, your responses are tired and laughable. Everything is the lawyers' fault. Drunk doctors get a bailout. Frivolous defenses have nothing to do with how much litigation costs. Do I have all your absurd arguments down? As a non-lawyer who was victimized by these types of defense tactics and schemes, I and the majority of the public see through the medical defense nonsense. I would hate to be your patient. You advocate for no accountability for your actions. If you are still practicing medicine, please retire
jc
Jessica, I am a practicing physician and have helped thousands of patients. I do think doctors should be held accountable. I strongly feel that patients and doctors are being victimized by our current medical malpractice system. This current system takes years of litigation to reach a conclusion which is bad for both the patient (you) and the physician (me). Get injured at work, there is worker's compensation. Get defrauded by a stockbroker, there is arbitration. Electric power goes out, you can complain to the utilities commision. So why can't we develop a medical court to hear medical malpractice cases? Take some of the pain out of these cases for both the patient and the doctor (who is very often innocent.)
Mark Bello
Dr. Cox: So, because frivolous defenses put forth by doctors increase the cost of litigation enormously and because these same frivolous defenses cause litigation to last for years, we should reward the doctors and their insurance companies for their litigation misconduct by allowing other doctors (your, so-called, "medical courts") to determine the damage caused by their misconduct? Let's reward the doctor's misconduct in avoidance of personal responsibility twice? Once in his/her treatment and again in conducting defense of the litigation? Does that sum up your argument? So, just how "accountable" should a doctor be when he/she destroys someone's life? You do not "take our some of the pain" of a seriously damaged plaintiff or plaintiff's deceased loved one by limiting his/her damages. And, you CAUSE more pain when you play these expensive litigation games to delay and deny fair compensation. I am going to repeat this for the umpteenth time: I am not advocating for a system that makes innocent doctors pay damages and I am willing to have a reasonable debate about that. However, I AM advocating for a system that does NOT restrict a plaintiff's recovery when serious misconduct causes serious damages. I AM advocating for a stop to the behavior of doctors and insurance companies trying to increase the time and the cost of pursuit to such an expensive and time consuming process that the injured person can't afford to pursue the case. Since you claim to be supportive of accountability, why would you advocate for a system that limits that accountability?
jc
You know, Mark, you raise a number of interesting points. I will address one point here which perhaps we can agree on, and others at your request. You complain about defense legal delay. Maybe this happens, but I have not seen it. When a case is filed against myself or one of my colleagues, we cannot wait to answer the complaint and go to court and get vindicated! From our standpoint, what happens is that the plaintiff's attorney soon learns that it is a frivolous case and then delays the case and makes settlement demands. Judges then try and twist the arms of the defendant doc because they do not want to take up court room time and try the case. So delaying tactics are a two way street. It is a major reason that I want medical courts. Right now, in Ohio, the plaintiff can get delay damages if the doctor unreasonably refuses to settle the case, and the trial results in a plaintiff award. Will you agree with me that defendant doctors should be allowed to get delay damages if the plaintiff attorney unreasonably refuses to drop the doctor from the case after the last pertinent expert testimony, and a defense verdict results? By the way, I appreciate your sentiment that you do not believe that innocent docs should be made to pay damages, we will discuss that some more.
Comments for this article are closed.