Bill trims rights, not costs

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Augustans deserve the truth on the “Patient Injury Act.”

In an opinion column headlined “Reduce health-care costs by replacing broken malpractice system,” (Augusta Chronicle, Dec. 8), Dr. Henry Goodwin writes about a proposal currently before the Georgia General Assembly that would take away Georgia citizens’ constitutional right to trial by jury when they have been harmed through the negligence of their health-care provider.

This proposal, he insists, will reduce health-care costs and increase access to justice for all Georgians.

However, if you think this sounds too good to be true, then you would be correct.

This proposal, known as the “Patient Injury Act,” would strip Georgia’s medical malpractice victims of the constitutional right to seek justice in the courtroom before a jury of fellow citizens, and replace our time-tested civil justice system with a burdensome, taxpayer-funded government bureaucracy.

In slamming the courthouse door on Georgia’s justice-seeking citizens, the bill runs afoul of our most sacred founding document – the Constitution.

As an attorney who has spent over three decades in the courtroom advocating on behalf of, and seeking justice for, victims of medical malpractice, I am confident our Supreme Court would rule the patient compensation scheme is an unconstitutional violation of our inviolate right to trial by jury.

To objective observers, it is equally clear that creating a new government-run bureaucracy will not be effective in holding substandard health-care providers accountable for the harm they do to Georgia patients.

Contrary to the claims of proponents of SB 141, this legislation would not have a deterrent effect on healthcare costs in our state. Instead, this bill will only serve to misappropriate taxpayer dollars in order to shield dangerous health-care providers from answering for their harmful practices.

And how would they pay for the additional costs of this new layer of government? By taxing doctors, dentists, nurses and hospitals to the tune of $29.5 million each and every year.

For the victims of medical malpractice and their families whom I have had the honor of representing, the courtroom is often the only opportunity they have to seek justice and compensation for the harm done to them.

Replacing our constitutionally guaranteed jury system with a big-government solution that creates yet another tax on our health-care providers and places victims at the mercy of bureaucrats is the height of irresponsible governance.

Georgians certainly deserve better.

Sam G. Nicholson

Augusta

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Bizkit
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Bizkit 12/17/13 - 11:04 am
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I think this person

I think this person mischaracterizes this effort. As I understand it is suppose to be like the UK where the person just fills out the paper work for reimbursement (the physician helps) and there is no costly lawsuits or court rooms?

Bizkit
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Bizkit 12/17/13 - 11:06 am
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Oh the writer is a lawyer and

Oh the writer is a lawyer and he is just protecting his income. OK I'm sold-if a lawyer thinks its a bad idea he is afraid of lost income and this is probably a really good idea.

carcraft
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carcraft 12/17/13 - 11:07 am
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Bizkit , EXACTLY!!

Bizkit , EXACTLY!!

itsanotherday1
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itsanotherday1 12/17/13 - 11:08 am
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Absolutely!

"By allowing a dispassionate examination of a situation by legal and medical experts instead of depending on the emotional response of people who understand neither, the truth will be found much more often."

At a minimum, all malpractice claims should pass muster in front of a board of experts before going to a jury, and awards should also go back before the same experts to ensure proportionality.

deestafford
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deestafford 12/17/13 - 11:09 am
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It's hard to chase an ambulance..

It's hard to chase an ambulance if you can't afford a fast car.

itsanotherday1
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itsanotherday1 12/17/13 - 11:11 am
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Question?

When the Democrats ride in to save the day with socialized medicine and the gummint is in charge, can they be sued for malpractice since they are the providing entity?

OJP
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OJP 12/17/13 - 11:56 am
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@deestafford:

"Another thing that would help our litigious legal system is the implementation of loser pays. When someone believes they would have to pay legal fees if they lose their case it would stop most, if not all, of these frivolous law suits."

This is an absolutely horrible idea. The hospitals already have the financial, and thus legal, advantage. The possibility of paying the Atlanta attorneys' $500/hr fee simply because the jury disagreed with you 51% to 49% would make it too risky for many people. And don't forget that many of those people are legitimately injured by a doctor's malpractice.

If the case was frivolous, the court can already award attorney's fees. It should NOT be automatic.

OJP
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OJP 12/17/13 - 11:49 am
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In my experience...

... this is another one of those ideas that almost everyone flip-flops on when it becomes personal.

When your child nearly dies because a doctor made a completely avoidable error, these bureaucratic hurdles will just look like a system protecting bad doctors.

The court systems is well-equipped to deal with medical malpractice, including frivolous claims (which are extremely rare). There is no need to add another layer of bureaucracy.

nocnoc
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nocnoc 12/17/13 - 12:06 pm
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Is this the Authors website?

Is the Author a lawyer?
http://www.nicholsonrevell.com/Attorney-Profiles/Sam-G-Nicholson.shtml

From the Website:
"However, within the last few years, he has focused on representing individuals who have been seriously injured as a result of the negligence or wrongdoing of another and handling consumer class actions against corporations whose business practices have been harmful to consumers."

OJP
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OJP 12/17/13 - 12:13 pm
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@bulldog

"By allowing a dispassionate examination of a situation by legal and medical experts instead of depending on the emotional response of people who understand neither, the truth will be found much more often. "

But, you see, that's how it works now. To file a medical malpractice suit, a third-party doctor (medical expert) must swear an affidavit that in his or her opinion, medical malpractice was committed by the defendant. Then, the defendant's attorneys can file motions to dismiss and for summary judgment, asking the judge to toss the case because it is frivolous (legal expert).

How many more layers of protection does a doctor who negligently harmed a patient need?

itsanotherday1
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itsanotherday1 12/17/13 - 12:14 pm
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OJP, the problem is that

OJP, the problem is that medicine is inexact and people expect exact results.
It is awful when a child dies on the table during a T&A, but it isn't necessarily malpractice.
It is awful when a patient presents with obvious symptoms of cholecystitis, is admitted, and their appendix ruptures during the night, resulting in death.
It is awful when an elderly woman goes in for hip surgery, hemorrhages post-op in the middle of the night, and dies.

I've seen all three, the third being my grandmother. Were they 100% preventable? Yes, but not in the course of accepted medical procedures. All three happened to good, solid doctors with stellar reputations and experience.
In some eyes there was malpractice here, and at least one was pursued as such (not my grandmother). I don't know the outcome, but I do know firsthand that her clinical presentation had no lab finding that it was appendicitis.

These cases happen every day, and the malpractice industry forces doctors to do a ton of expensive, unnecessary testing just for CYA purposes.

Then you have juries awarding millions because "SOMEBODY GOTTA PAY!" You couldn't buy my leg for any amount of money, but in reality, what is it worth in the scheme of things?

Obstetrical malpractice insurance is astronomical. Why is that? It isn't because you have more incompetent doctors in the specialty. It is because babies tug at emotions and doctors are sued left and right when a birth isn't 100% perfect.

RMSHEFF
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RMSHEFF 12/17/13 - 12:15 pm
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OPJ

You need to hang out around a Nursing home and then say "The court systems is well-equipped to deal with medical malpractice, including frivolous claims (which are extremely rare)". Most never reach the court system and are settled strictly based on the cost of litigation and not on the merits of the case.

OJP
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OJP 12/17/13 - 12:15 pm
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@nocnoc

The author states that he is a lawyer in the letter.

OJP
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OJP 12/17/13 - 12:59 pm
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@itsanotherday1

Based on your post, it sounds like the system works fine as-is. Those three hypotheticals don't seem like good cases for medical malpractice, and only one was pursued. Why not look for the outcome of the case before you claim that the system didn't work? For all you know, it was dismissed as frivolous.

And what if it IS medical malpractice? Are you claiming that it doesn't exist? If you are, you will certainly have to source that (and tell us how the medical profession has eradicated errors caused by negligence). Of course, medical professionals DO commit injuries that are their fault (factually and legally). The victims of such injuries should be compensated - that is a bedrock principle of Western law.

As it stands now, frivolous lawsuits really just aren't common. For one, most attorneys take such cases on a contingency basis. Because of that, they won't take a case that is frivolous because it is a waste of time and money (the law firm fronts all costs, such as for depositions). If an attorney does decide to take the case and file suit, then s/he must then find a doctor who agrees that malpractice was committed. And there would likely be issues of everyone looking out for everyone else (e.g, "If I do this against Dr. Smith, Dr. Smith won't think twice about doing it against me."), especially in a small town like Augusta. In other words, a victim's chances of being made whole likely decrease as the size of his or her town decreases. Assuming we make it this far, the doctor's attorneys will file various motions asking the judge to dismiss the case.

So... to recap: to make it to a jury, the claim has to be deemed non-frivolous by the plaintiff's attorney (legal but not impartial), another doctor (medical), and a judge (legal and mostly impartial).

How will an extra layer of bureaucracy improve upon that?

Cui bono, my friend.

carcraft
27125
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carcraft 12/17/13 - 01:11 pm
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OJP, I was sued as previously

OJP, I was sued as previously mentioned. It was a garbage suit by a New York lawyer. The idiot actually threw the patient's record at me. To sue in Georgia you need expert testamony of probable cause and mal practice. The "expert" speculated as to probalable cause and his speculation was demonstrated to not be factual,. but for the check he recieved the case moved forward. That passed muster for "expert testamony as to cause of damage. After all the depositons, technical reviews etc the case was settled for a nominal fee. The system is broke! No, hospitals cannot afford expensive lawyers etc. and the cost for defending from trash frivoulous lawsuits is not minor and the patient's pay for the hospitals to defend themselves, there is no free lunch!!! "One call that's all" no there are no ambulance chasers are there?

OJP
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OJP 12/17/13 - 01:30 pm
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@carcraft

I don't think discussing a personal suit against you will be particularly helpful (anecdotal and obviously biased).

It's generally not the hospital themselves footing the bill, but their insurance company. And those companies certainly can afford to mount a proper defense. But it's more about relative ability: even a hospital will have more resources to defend a case than someone who makes minimum wage and was recently injured by, say, a doctor still drunk from a party the night before.

I freely admit that there are frivolous claims, but they are mostly tossed out by various legal mechanisms. And there are "ambulance chasers" out there but really the same can be said of doctors (both doctors and medical malpractice attorneys have a financial need for people to get sick or be injured). Doctors just don't have to chase the ambulance - it comes to the doctor.

Do you not admit that doctors negligently injure people?

deestafford
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deestafford 12/17/13 - 01:50 pm
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When I talk about loser pays...

When I talk about loser pays I'm talking about all lawsuits not just malpractice. So many times they are brought with the idea of it costing more for the defendant to go to court than it would to settle out of court even though their is a weak or no case. If the possibility of having to pay if one lost they would think and make sure they had a strong case before going to court. Many cases are filed against someone because they have the deepest pockets in the chain.

Bizkit
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Bizkit 12/17/13 - 02:25 pm
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Doctors "negligence" seems a

Doctors "negligence" seems a harsh word as though "intentional"-and I should qualify there are bad doctors who would intentionally abuse you for a profit just like leech lawyers. Physicians have insurance to pay for their mistakes but it still cost them as premiums go up. I like this UK idea because it isn't adversarial.

Red Headed Step Child
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Red Headed Step Child 12/17/13 - 02:33 pm
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@nocnoc

Yes - that is his law practice.

To the poster who talked about flip-flopping, you're exactly right. No one likes a lawyer until they need one.

dichotomy
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dichotomy 12/17/13 - 05:30 pm
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Lawyers always whine and

Lawyers always whine and complain about the injured persons right to sue for megabucks. Fine. Limit the attorney's compensation to their normal hourly rate or 5% of the award, whichever is greater. Malpractice lawsuits would stop dead in their tracks.

carcraft
27125
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carcraft 12/17/13 - 08:06 pm
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OJP Look up the cost of

OJP Look up the cost of frivolous law suits. There are an astounding number, the one suit I was involved on is anecdotal but have been in health care 30 years I can tell you my experience wasn't atypical. If you think when you sue the hospital you are just during an insurance company the insurance company only has the money they charge for premiums and that ends up being paid by the patient!

itsanotherday1
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itsanotherday1 12/17/13 - 10:57 pm
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Yes OJP, there are clear cut

Yes OJP, there are clear cut cases of malpractice, and those people should be made whole. Again, the problem is that expectations of people for perfection are unreasonable. You are quoting requirements for Georgia, but what are they nationwide? And I ask again, why are obstetrical premiums so high? Delivering babies is not that risky for the physician to do right, midwives have done it for centuries. Sometimes, things go wrong that are not in control of the doc, it is the nature of childbirth.

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