Despite the Georgia Constitution that provides “The right to trial by jury shall remain inviolate …” and further provides “No person shall be deprived of the right to prosecute or defend, either in person or by an attorney, that person’s own cause in any of the courts of this state,” a recently filed Georgia Senate Bill (S.B. 86), if passed into law, would decimate the jury system in Georgia for medical malpractice cases and replace the time-honored jury system with “independent review panels” in medical malpractice cases.
The proposed “Patient Compensation Act” justifies its passage, in part, by the “finding” that “because of continued exposure to liability, an overwhelming majority of physicians practice defensive medicine by ordering unnecessary tests and procedures, driving up the cost of health care for individuals covered by public and private health insurance coverage and exposing patients to unnecessary clinical risks.” The Patient Compensation Act (“Act”) states that it is “intended to significantly reduce the practice of defensive medicine, thereby reducing health care costs, increasing the number of physicians practicing in this state, improving patient safety, and providing patients fair and timely compensation without the expense and delay of the court system,” without stating how the Act would accomplish any of those goals.
The Act provides, “The rights and remedies granted by this Act on account of a medical injury shall exclude all other rights and remedies of the applicant … at common law or as provided in general law of this state, against any provider directly involved in providing the medical treatment from which such injury or death occurred, arising out of or related to a medical negligence claim, whether in tort or in contract, with respect to such injury resulting from medical treatment provided on or after January 1, 2016.” In short, patients who are injured (or worse) due to medical malpractice committed in Georgia after December 31, 2015 would have no right to have their medical malpractice claim decided by a Georgia jury.
The Act specifies that a Medical Review Committee, composed of two physicians and a non-attorney (one of the physicians is the chair of the Committee), would recommend a comprehensive list of panelists who would serve on “independent medical review panels.” The Act would establish the Office of Medical Review (which evaluates and, “as necessary,” investigates all applications for compensation), which would conduct an investigation and, within 30 days after the completion of the investigation, a medical review panel would be convened to determine whether the application filed by an alleged medical malpractice victim constitutes a “medical injury” (defined as personal injury or wrongful death due to medical treatment, including a missed diagnosis) with damages. The medical review panel would be composed of an odd number of at least three panelists chosen from a list of panelists representing a like or similar specialty or practice as the providers rendering care as described in the application filed by the claimant. In short, doctors would be investigating and evaluating their own colleagues.
If the Office of Medical Review determines that the application does not, prima facie, constitute a medical injury with damages, it sends a rejection letter to the applicant by registered or certified mail. If the Office of Medical Review finds that the application is valid, the Office of Compensation determines an award of compensation (a Compensation Committee is composed of a certified public accountant and two board members who are not physicians or attorneys).
What recourse does a claimant have if he or she is dissatisfied with an award of compensation issued by the Office Of Compensation? The Act provides that an administrative law judge (not a jury and not a court) decides appeals filed by applicants, which is limited to determining whether the Office of Medical Review, the medical review panel, or the Office of Compensation “faithfully followed the requirements of this chapter and rules adopted hereunder in reviewing applications,” which would be “conclusive and binding as to all questions of fact.”
If Georgia Senate Bill 86 is allowed to pass and is signed into law, thereby precluding unbiased Georgia juries from deciding medical malpractice claims, then the victims of medical negligence in Georgia are screwed (perhaps not a polite word but nonetheless an accurate description of the effect of S.B. 86 on the victims of medical malpractice in Georgia).
The sponsors of Senate Bill 86 should be ashamed and should be ostracized for proposing a law that is unconstitutional on its face, which seeks to replace juries with appointees of government to make important decisions that affect Georgia citizens.
If you have been injured due to medical negligence in Georgia or in another U.S. state, you should promptly find a Georgia medical malpractice lawyer, or find a medical malpractice lawyer in your state, who may investigate your medical malpractice claim for you and represent you in a medical malpractice case, if appropriate.
Turn to us when you don’t know where to turn.