GEORGIA CHAMBER OF COMMERCE CIVIL JUSTICE FORUM DONALD J. - - PowerPoint PPT Presentation

GEORGIA CHAMBER OF COMMERCE CIVIL JUSTICE FORUM

DONALD J. PALMISANO, JR, JD EXECUTIVE DIRECTOR

Building a Better State of Health Since 1849

Status of Tort Reform – Still in Effect

• ER gross negligence statute
• Gliemmo v. Cousineau, 287 Ga. 7 (2010)
• Plaintiff must prove gross negligence by clear and convincing evidence

involving emergency medical care in a hospital emergency department or

• bstetrical unit
• Expert qualifications
• Ellis v. Mays, 283 Ga.App. 195 (2007)
• Phillips v. Cotton, 280 Ga.App. 280 (2006)
• Abramson v. Williams, 281 Ga.App. 617 (2006)
• The Court of Appeals also held that it is the expert’s qualifications, not the

defendant doctor’s area of practice, that controls the admissibility of expert testimony in a medical malpractice case

• Offer of settlement
• Smith v. Salon Baptiste, 287 Ga. 23 (2010)

Building a Better State of Health Since 1849

Status of Tort Reform – Still in Effect

• Apportionment of damages
• This provision requires the apportionment of damages according to the

percentage of fault, including the fault of the plaintiff. In addition, it allows for the jury to consider the fault of a non-party if the non-party settled with the plaintiff or if the defendant gives notice 120 days before trial that the non-party was wholly or partially at fault

• Venue and forum non-conveniens
• Garland v. Earle, 280 Ga. 333 (2006)
• This provision allows the court to decline a case and transfer it to another

county if the court determines that “the interest of justice” and the “convenience of the parties” warrant transfer

• Statement of apology or sympathy
• Airasian v. Shaak, 289 Ga. App. 540 (2008)

Building a Better State of Health Since 1849

Status of Tort Reform – What Has Been Overturned

• Caps on non-economic damages
• Nestlehutt v. Atlanta Oculoplastic Surgery, 286 Ga. 731 (2010)
• Supreme Court ruled the “statute limiting awards of noneconomic

damages in medical malpractice cases to a predetermined amount violated the state constitutional right to a jury trial”

• Venue in medical malpractice cases
• ECHA Cartersville v. Turner, 280 Ga. 333 (2006)
• Required a judge to transfer a case to a defendant’s home county,

if so requested by the defendant, and if the event prompting the suit occurred in the defendant’s home county

• Medical authorization
• Allen v. Wright, 282 Ga. 9 (2007)
• The Georgia Supreme Court held that this statute is preempted by

HIPAA

Building a Better State of Health Since 1849

Number of Claims Opened in GA

691 851 938 1036 1132 1128 799 744 810 692 724 763 837

200 400 600 800 1,000 1,200

1999 2000 2001 2002 2003 2004 2005 2006 2007 2008 2009 2010 2011 Building a Better State of Health Since 1849 Courtesy of MAG Mutual

Total Paid Losses

(in millions)

$12.9 $15.9 $26.2 $23.9 $27.0 $30.3 $26.7 $36.2 $40.0 $52.5 $42.2 $42.9 $50.9 $66.7 $61.7 $59.3 $50.8 $77.1 $64.9 $59.9 $49.6 $48.7 $7.1 $5.9 $7.5 $9.0 $9.1 $11.3 $10.7 $12.2 $13.2 $17.1 $14.6 $19.7 $23.5 $27.9 $32.8 $35.9 $33.7 $34.3 $36.7 $41.5 $27.2 $26.2

$0 $20 $40 $60 $80 $100 $120

1990 1991 1992 1993 1994 1995 1996 1997 1998 1999 2000 2001 2002 2003 2004 2005 2006 2007 2008 2009 2010 2011

Indemnity Defense Costs

Building a Better State of Health Since 1849 Courtesy of MAG Mutual

Georgia P&S Medical Malpractice Premium History

(2004 – 2011)

$50 $100 $150 $200 $250 $300

2004 2005 2006 2007 2008 2009 2010 2011

Premium (millions)

State-Wide Total Premium MAG Mutual Premium Competitor Premium

Total state-wide premium has decreased approximately 24%. MAG Mutual premium has decreased 40% due to rate level reductions and increased competition. MAG Mutual also returned $36.8 million in policyholder dividends to Georgia physicians since tort reform. The estimated average premium per physician has decreased 34% from approximately $23,000 in 2004 to $15,000 in 2011. Participation by other competitors has increased from 34% of the market to 50% of the market – a 47% increase. Building a Better State of Health Since 1849 Courtesy of MAG Mutual

Georgia Medical Professional Liability Environment

• Increase in a patient’s access to care to a

physician

• Increase in the number of OBGYN and general

surgeons

• Insurance market is more competitive
• Stabilization of rates

Building a Better State of Health Since 1849

Future Possibilities for Georgia

• Constitutional amendment for a cap on non-economic

damages

• Separate trials for negligence and damages

(Bifurcated Trial)

• Calculation of future damages
• Provider Shield Act
• True payment of damages

Building a Better State of Health Since 1849

For more information …

www.mag.org www.twitter.com/DpalmisanoMAG 404.312.9030 (mobile phone) Look for the “Medical Association of Georgia” on Facebook Donald J. Palmisano, Jr., Executive Director dpalmisano@mag.org

Building a Better State of Health Since 1849