Category Archives: Georgia

December 2017 Newsletter

Year-end report sheds light on “Judicial Hellholes” The American Tort Reform Association (ATRA) end-of-year “Judicial Hellholes” report offers a public glimpse at the most unfriendly jurisdictions for those defending themselves against civil litigation, including medical liability lawsuits. At the top of the list this year was Florida, where once-strong medical liability reforms have been continuously rolled back at the expense of patients seeking affordable and accessible care. “This year, thanks to a state high court majority’s barely contained contempt for the policy-making authority of the legislative and executive branches of government, and a notoriously aggressive and sometimes lawless plaintiffs’ bar, Florida earns the ignominious #1 ranking among eight Judicial Hellholes…” said American Tort Reform Association president Tiger Joyce. Also high on the list was St. Louis, where “antiquated rules have made it a favorite of personal-injury lawyers shopping for big-money verdicts” resulting in $300 million in awards since 2015. However, recent changes in state government, including a governor in support of changes to the liability system, do hold promise for much-needed reform in the coming year. To read more about ATRA’s “Judicial Hellholes” executive summary and report on the where physicians and defendants fare the worst when it comes to…

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High Court’s Contempt for Lawmakers’ Authority, Lawsuit Rackets Place Florida atop Latest ‘Judicial Hellholes’ List

WASHINGTON, D.C., December 5, 2017 – The American Tort Reform Foundation issued its 2017-2018 Judicial Hellholes® report today, naming courts in Florida, California, Missouri, New York, Pennsylvania, New Jersey, Illinois and Louisiana among the nation’s “most unfair” in their handling of civil litigation. “With both this annual report and a year-round website, our Judicial Hellholes program since 2002 has been documenting troubling developments in jurisdictions where civil court judges systematically apply laws and court procedures in an unfair and unbalanced manner, generally to the disadvantage of defendants,” began American Tort Reform Association president Tiger Joyce. “This year, thanks to a state high court majority’s barely contained contempt for the policy-making authority of the legislative and executive branches of government, and a notoriously aggressive and sometimes lawless plaintiffs’ bar, Florida earns the ignominious #1 ranking among eight Judicial Hellholes, even as authorities have begun to crack down on some of the lawsuit industry’s most obviously fraudulent rackets. “Ranked #2 is perennial hellhole California, where lawmakers, prosecutors and plaintiff-friendly judges inexorably expand civil liability at the expense of businesses, jobseekers and those desperately in need of affordable housing,” Joyce explained. “The good news is the U.S. Supreme Court in June reversed a…

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Offer ER Doctors Needed Relief

Legislation would provide emergency physicians with helpful, and fair, tort reform Emergency room doctors shouldn’t have to fear lawsuits when simply doing their jobs. A bill in the Michigan House would bring some reasonable control to medical malpractice lawsuits brought against physicians in emergency situations. The liability limits in the legislation would improve patient care and help retain and even attract doctors to Michigan. Currently, the state is losing physicians, according to experts. Antonio Bonfiglio, M.D., with offices in Warren and Fraser, says the bill relieves some of the liability physicians may face in medical emergencies. “The bill doesn’t apply to elective surgeries or gross negligence,” explains the past president of the Michigan College of Emergency Physicians. “This isn’t a get out of jail free card (absolving doctors of all liability). This applies when patients are in emergency situations and when additional physician care is needed.” The threat of a lawsuit often hangs over physicians. But liability concerns in emergency situations have some doctors, particularly specialists, hesitant to even be on call. The federal Emergency Medical Treatment and Labor Act, passed in 1986, requires hospitals treat every person brought into their emergency rooms. But sometimes, as Diane Bollman, executive director…

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ACA Could Pose Unintentional Legal Dangers for Physicians

Federal quality metrics – integrated into the Affordable Care Act to improve and standardize care – are posing unintended legal risks for physicians, medical malpractice experts noted. “The Affordable Care Act itself doesn’t identify medical malpractice issues,” according to Aldo Leiva, a health law attorney in Coral Gables, Fla. “The concern that has arisen has been whether or not the content or language in the [ACA] can be used by plaintiffs’ lawyers against doctors by creating an additional standard of care.” Attorneys and insurers already are hearing reports of federal reimbursement decisions being introduced into medical malpractice cases. In such instances, lawyers use federal payment denials to bolster their claims of negligence, according to Mike Stinson, director of government relations for PIAA, a national trade association representing medical liability insurers. Hospital readmission standards are one such federal quality measurement that could unfairly impact doctors in court, said Brian K. Atchinson, PIAA president and CEO. The ACA reduces payments to hospitals considered to have excessive readmissions. “The mere fact that there will be many thousands of people that will be readmitted to a hospital within 30 days, that should not be evidence of inadequate care,” Mr. Atchinson said. Penalties regarding hospital-acquired…

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Health reform medical liability shield a model of good sense

Georgia now protects its physicians from a possible liability loophole in the ACA. The rest of the nation must do the same. The Affordable Care Act will bring new insurance coverage to tens of millions of people, put a needed focus on preventive care, and start modernizing delivery and payment systems that could use an overhaul. These are large-scale, important changes for patients and the physicians who serve them. But no single reform law is going to be complete or perfect, especially not one with goals as sweeping as the ACA’s. Physicians need to remain diligent that the move toward strengthening the health system doesn’t give inadvertent openings to those who would attempt to exploit its weaknesses. One potential loophole exists in the federal care quality and payment reform provisions authorized by the ACA. On their face, they are intended to move away from a system that pays for care based solely on the volume of services and toward one that takes quality of care into consideration — certainly an admirable goal. Unfortunately, some might seek to inflate these provisions into something they were not meant to be by arguing that they establish new federal standards of care when it…

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Doctors win first safe harbor against ACA use in liability suits

Physician leaders hope a first-of-its-kind bill approved in Georgia protecting doctors from civil liability for breaching federal health system reform requirements will be replicated in other states. Medical associations long have been concerned that federal quality-of-care and payment reform measures, such as those authorized by the Affordable Care Act, could be used to fuel negligence accusations against individual physicians. The Georgia law, drafted from American Medical Association model legislation, prevents such health reform metrics from being used as evidence in liability cases. Georgia’s law states that payer guidelines and quality criteria under federal law shall not establish a legal basis for negligence or a standard of care for the purposes of determining medical liability. “We’re saying if it’s a breach in those federal guidelines based on administrative behavior, let’s make sure that evidence is not admissible in court, and more than anything, let’s make sure that evidence is not being used as a determinant in the standard of care,” said Marcus Downs, director of government relations for the Medical Assn. of Georgia, which advocated for the enactment of the shield law. “There could be some [administrative] wrongdoing, but it is definitely not malpractice. It’s definitely not negligence.” The passage of…

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Third parties can’t sue doctors when injured by patients, says state high court

Physician advocates are praising a Connecticut Supreme Court ruling they say protects doctors from being sued unfairly by third parties who are injured by patients. In a Sept. 17 decision, judges said physicians owe no duty to nonpatients who are harmed because of a patient’s medical condition. The ruling contrasts with state Supreme Court opinions in similar cases. The Connecticut ruling prevents doctors’ obligations from being expanded to third parties, said Layne Gakos, general counsel for the Connecticut State Medical Society. The society was not involved in the case. “It’s a very important ruling,” Gakos said. “If this case had gone the other way, it would have had a detrimental effect on the physician-patient relationship. It essentially would have imposed [a] duty on physicians to constantly be on the lookout for third [parties]. It would have changed the way physicians practice medicine.” The case stems from a June 2006 visit by Mary Ann Ambrogio to the Gastroenterology Center of Connecticut, PC, in Hamden. Ambrogio was diagnosed and treated by gastroenterologist Frank Troncale, MD, for liver and kidney ailments, including hepatic encephalopathy, according to court documents. As she was leaving Dr. Troncale’s office, Ambrogio passed out in her vehicle and struck…

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Ga. group offers way to curb health care costs

A Gallup survey this summer found that 26 percent of all health care spending in Georgia is on unnecessary tests. The state’s doctors ring up $15 billion annually in avoidable costs, mostly in efforts to create evidence in case they are sued. Just in the state’s Medicaid program, that amounts to $4 billion of expenses passed along to taxpayers every year, according to BioScience Valuation in a study sponsored by the Atlanta-based advocacy group Patients for Fair Compensation. “This is massive savings, something to be taken very seriously,” said Charles R. Evans, the vice chairman of Patients. “Certainly it should draw the attention of every state lawmaker grappling with fiscal uncertainty.” The latest proposal calls for establishment of a no-fault patient compensation system similar to state workers’ compensation plans. A century ago, Wisconsin enacted the first state workers’ compensation law when employers agreed to pay medical bills and wages without a court finding them at fault and workers agreed to give up their right to file suit. Employers were required to purchase insurance to guarantee the payouts. Such a tradeoff in the medical arena would require doctors and hospitals to compensate victims without going to court, and patients would give…

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Trade Group Calls for Medical Liability Reform After Claim Loss Rates Rise 4%

Rising medical liability costs are named in a recent report as yet another source that’s sapping Medicaid funding, according to a new report by Aon Risk Solutions,prompting a long-term care provider trade group to call for state-by-state medical liability reform to preserve access to services while reducing providers’ liability costs. “Rising liability costs add to the many challenges already facing our profession,” said Governor Mark Parkinson, president and CEO of the American Health Care Association/National Coalition for Assisted Living, in a statement about the report. “Lengthy, costly litigation drives up costs for our residents, long term care facilities and ultimately taxpayers. This analysis shows costs exploding in states without meaningful, effective medical liability reform. As state and federal governments search for ways to contain health care costs, this is one area that warrants close examination.” Paying higher liability costs is yet another burden that could impact long-term care facilities, many of which are already battling the effects of the average 11.1% cuts to Medicare reimbursements that went into effect last October, says Aon in its 2012 Long Term Care General Liability and Professional Liability Actuarial Analysis. “With reduced revenue, providers will find it more difficult to fund in expansion and…

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Doctors still face harsh medical liability realities

When looking at the medical liability landscape, doctors will see some recent victories fending off tort reform challenges. California’s $250,000 noneconomic damages cap — long considered the gold standard among state tort reforms — was upheld by an appellate court in September 2011. West Virginia’s cap of the same amount was declared constitutional by the state’s high court in June 2011. Such reforms enacted or upheld in these and other states are credited with positive results. Doctors who otherwise would have fled to a better liability climate have stayed put. Liability premiums in tort reform states are typically lowered or at least stabilized. But those strides must be viewed alongside setbacks. In 2010, the Georgia Supreme Court found that state’s $350,000 cap unconstitutional, and the Illinois Supreme Court did the same with the Illinois cap of $500,000. Legal challenges are being waged in Missouri, Indiana and elsewhere. Two recent reports from the American Medical Association provide an even broader reality check on the scale of the challenge that physicians still face. The first study, issued in November 2011, found that the average expense to defend against a medical liability claim in 2010 was $47,158. That’s a 63% increase from 2001….

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