Rep. Ronnie Mabra: Medical Malpractice Reform Proposal is Bad Medicine for Georgia

January 22, 2014 11:00 am

by Stefan · 34 comments

Editor’s note: This is a guest editorial by Representative Ronnie Mabra in response to Senate Bill 141, the “Patient Injury Act.” You can read the editorial by the sponsor of the bill, Senator Brandon Beach here.

As a State Representative and an attorney, I have the unique privilege of representing Georgians at both the Capitol and in the courtroom. And whether I am fighting to obtain justice for a client or advocating for Georgians’ rights under the Gold Dome, one thing remains constant: I always act in the best interest of those whom I have the honor of representing. It is not often that the two intersect, but a proposal currently under consideration before our legislature poses an immediate and potentially disastrous threat to not only my clients and my constituents, but to every citizen of the State of Georgia.

A bill known as the ‘Patient Injury Act’ has been introduced in the Georgia General Assembly and I have some very serious concerns about the impact that this legislation would have on our state if it were signed into law. At its very core, this bill seeks to eliminate Georgia patients’ Constitutional Right to Trial by Jury when they have been harmed by their healthcare provider and instead replace our time-tested civil jury system with a taxpayer-funded government panel. As an attorney who has had the privilege of representing innocent victims of medical malpractice in the courtroom before a jury of their fellow citizens, I find this to be wholly unacceptable.

Our Right to Trial by Jury, which is enshrined in the 7th Amendment to the U.S. Constitution and reaffirmed in Paragraph XI of the Constitution of the State of Georgia, is as important to ensuring the continuance of our just society as any guarantee set forth in our founding documents. This Right is, in my mind, the great equalizer – an opportunity for all individuals, regardless of their standing in society, to seek justice before an unbiased jury of their fellow citizens on a level playing field. In fact, the authors of our state’s Constitution believed so strongly in this Right that they even went a step further than the Framers of the U.S. Constitution, writing that the Right to Trial by Jury shall remain “inviolate” – leaving very little room for the erosion of this promise. Through my studies of both the law and the Constitution, I am absolutely certain that this legislation would be held to be an unconstitutional violation of the Right to Trial by Jury.

I hear from constituents in my district each and every day about the crippling costs of the healthcare system in our country. Unfortunately, the proponents of this measure have taken advantage of these all-too-familiar anxieties by falsely and misleadingly presenting their bill as the silver bullet to solve expensive healthcare. This is shameful exploitation, and their claims simply could not be further from the truth.

Take, for example, the fact that the frequency of medical malpractice payments on behalf of doctors and the sum of these payments have fallen every single year over the past decade. In addition, while national healthcare costs have risen 58% over the last 10 years, malpractice payments fell 29% over that same period. Even if you were to eliminate the entire medical liability system in America, you would achieve savings of only ½ of 1% of all healthcare costs. And yet, they want you to believe that it is the victims of medical malpractice who are driving up the cost of healthcare.

The ‘Patient Injury Act’ will not be effective in holding negligent healthcare providers accountable for the harm that they do to Georgia patients and it will not have a deterrent effect on healthcare costs in our state. In fact, this bill levies a brand new tax on doctors, dentists, nurses and hospitals that could amount to nearly $50 million just to pay for the costs of their new system alone.

While I do not support taking away Georgia citizens’ Constitutional Right to Trial by Jury in order to achieve the phantom savings associated with this bill, I do believe that we must take a serious look at common-sense solutions to ensure that healthcare coverage is a realistic and affordable option for all Georgians. This bill does not belong in that conversation.

Let’s go back to the drawing board. My constituents, clients and fellow Georgians all deserve better.

 

State Representative Ronnie Mabra represents House District 63, comprising South Fulton, North Fayette, and South Clayton Counties.

 

KD_fiscal conservative January 22, 2014 at 11:10 am

Summary: “As a trial lawyer, I’m against legislation that would hurt my industry.”

tribeca January 22, 2014 at 1:10 pm

You tell ‘em, KD. How dare that sleazy trail lawyer question a bill backed by the totally impartial and upstanding healthcare and insurance industries?

Judges already dismiss non-meritorious cases at the pleadings stage (for a halfway decent defense lawyer, writing a 12(b)(6) motion for a truly frivolous case would take an hour or two). Defense attorneys can, and will, seek sanctions against lawyers who bring “frivolous” suits through Rule 11 motions. The state bar has ethics rules prohibiting this kind of stuff. A lot of districts and jurisdictions have really beefed up enforcement of Rule 11 and the various ethics rules, so nowadays there aren’t a lot of baselessly frivolous suits out there and the bad cases that are brought, don’t get very far.

The real problem behind medical malpractice payouts isn’t frivolous lawsuits, its a rash of bad doctoring. But, as I always say, “everyone hates lawyers, ’til they need one.”

KD_fiscal conservative January 22, 2014 at 5:58 pm

Interesting perceptive. So in other words, considering over 75% of docs in low risk specialties and 99% in high risk specialties get sued, the vast majority of doctors in the country practice “bad doctoring.”

Sure some of the suits get thrown out, but it still causes much money and stress plus doctors have to deal with slimy defense attorneys…and who wants to do that.

http://www.insurancejournal.com/magazines/features/2011/09/05/213629.htm

Thomas Adams (@GeorgiaCRE) January 22, 2014 at 11:38 am

Rep. Ronnie Mabra: Medical Malpractice Reform Proposal is Bad Medicine for Georgia http://t.co/QKITlkt9Xz

@electmabra January 22, 2014 at 12:41 pm

Rep. Ronnie Mabra: Medical Malpractice Reform Proposal is Bad Medicine for Georgia http://t.co/yZRoY3uDJv

South Fulton Guy January 22, 2014 at 1:11 pm

“As a trial lawyer, I’m against legislation that would hurt my industry.” Sounds like this is based on self interests and his income not what is in the best interests of the citizens of Georgia to me. Am I wrong??

Doctor Strangelove January 22, 2014 at 2:02 pm

To my understanding, medical associations also oppose this bill. It’s a pretty bad bill, and it raises serious constitutional concerns.

analogkid January 22, 2014 at 7:44 pm

FYI, that sentence doesn’t appear in the piece above.

South Fulton Guy January 22, 2014 at 8:42 pm

upon further review you are correct analogkid

South Fulton Guy January 22, 2014 at 8:36 pm

Thank you for the rest of the story. Representative Mabra often starts his dialogue in public forums with “I’m a lawyer” like Harvey Levin of TMZ so I had my radar on and shields up…

Raleigh January 22, 2014 at 1:33 pm

Maybe he is watching out for himself however if you read the bill how is putting malpractice compensation decisions into the hand of another bloated government bureaucracy which will not have my best interest at heart benefit anyone? My advice is read the bill to see just how bad this train wreck it is and it is a train wreck.

@OlsmanMueller January 22, 2014 at 1:42 pm

Rep. Ronnie Mabra: Medical Malpractice Reform Proposal is Bad Medicine for Georgia — Peach Pundit http://t.co/6hAhDMYXAt #malpractice

Cloverhurst January 22, 2014 at 2:09 pm

MAG and MAG Mutual (the malpractice company that serves as the associations sugar daddy) opposes SB 141 but remember the AMA sold out Doctor’s and supported Obamacare.

KD_fiscal conservative January 22, 2014 at 6:01 pm

Also important to remember MAG mutual and all other insurance co’s want to keep higher premiums. They interests aren’t aligned with patients or doctors.

John Konop January 22, 2014 at 9:30 pm

You should comment more, you make make very insightful points….

KD_fiscal conservative January 25, 2014 at 1:09 am

Hey John, I always enjoy chiming in around here…but been really busy with school.

debbie0040 January 23, 2014 at 7:45 pm

MAG Mutual actually makes a decent profit off of keeping things as they are now.. It is about the pocketbook..

@robinfclark January 22, 2014 at 2:40 pm

Rep. Ronnie Mabra: Medical Malpractice Reform Proposal is Bad Medicine for Georgia http://t.co/cqUSElMIxv

Will Durant January 22, 2014 at 4:29 pm

Why not just limit attorneys to the amount of billable hours actually spent on a case billed at their normal hourly rate? If a jury deems that a person needs $5 million for care after being maimed by a doctor why does the attorney then get 30-40% of the total?

Stefan January 22, 2014 at 4:37 pm

Because billable hours are for those who are guaranteed to get paid. These are contingency fees, so if the case is lost the attorney does not get paid a cent. The whole reason for contingency fees is so someone who is not independently wealthy can afford to have an attorney, but the tradeoff is that a percentage of the jury award goes to the attorney.

Keep in mind that in a medical malpractice case hiring and deposing experts costs a lot of money, and I’m not talking about billable hours, court reporters, etc. That wouldn’t change with a new system – the costs would be just as high (you still have to prove your case). If the lawyer loses the case, those costs are not recompensed. That’s a tremendous amount of risk to take to base it solely on billable hours.

Will Durant January 22, 2014 at 8:27 pm

I am not against anyone making a decent living. But judging by the dozens of variations of “Better Call Saul” commercials I’ve been subjected to while having to stay in bed today, it appears more than a few are making an indecent living off of all of us in this vicious cycle.

Cloverhurst January 22, 2014 at 10:21 pm

Stefan- that is part of the problem. If you have a claim that is worth less than 500,000.00 you cannot find an attorney to take your case.

Stefan January 23, 2014 at 12:40 am

that’s not entirely true, but that number comes from the study referenced by Senator Beach, and it begins, and I am paraphrasing, “because of tort reform passed in 2005, it is harder to find an attorney to take cases where the damages are low.”

so the answer to that is more tort reform? even if it weren’t unconstitutional, it is still a bad idea.

analogkid January 22, 2014 at 7:47 pm

I’d like to think that the Tea Party will mount a strong opposition to this bill on the constitutional grounds raised above. I will not hold my breath.

Cloverhurst January 22, 2014 at 10:27 pm

The facts are pretty clear. Today, if you get injured- it takes 5 years to dispute a claim and that is if the claim is worth more than $500,000.00. How this serves anyone but the slip and fall lawyers I do not know.

On the constitutional issue- this system will be identical to workers compensation. The workers comp system is not unconstitutional is it?

Stefan January 23, 2014 at 12:43 am

You are conflating two entirely distinct practices of law. Med Mal and slip and fall are not related. This proposed system has little in common with worker’s compensation. That’s a canard.

saltycracker January 23, 2014 at 7:34 am

Perhaps a reasonable direction might be found in taking a long look at the jury process.

Max Power January 23, 2014 at 11:43 am

So many people on PP love the 2nd Amendment but completely ignore the 7th.

debbie0040 January 23, 2014 at 7:33 pm

I appreciate Rep. Mabra trying to determine if this bill is Constitutional on both the state level and federal level.

I am supporting this bill, but respect that there are opposing views..

I would like to point out the 7th Amendment only applies to civil suits tried in Federal Courts-not state courts. In fact there was much discussion during debate in the framing of the U.S. Constitution about “Right to Trial by Jury” for civil cases. The federalists opposed adding it to the Constitution because they felt like Congress should decide which cases had jury trials in civil cases.

On a state level, I have looked at the finding of legal opinions on both sides and believe it is Constitutional on the State level . In particular, Workman’s Comp has been upheld as Constitutional and it stopped claims that were tried by juries in 1798. There are rulings by the Georgia Supreme Court in 1848 (Flint River Steamboat Co. vs. Foster, 5 Ga. 194) and in 1921 (Crowell v. akin, 108 S.E. 791)

Stefan January 24, 2014 at 8:50 pm

Ok, well first of all, the system they are talking about implementing has nothing to do with worker’s compensation. That’s still a court system, this is not. At all, there aren’t even judges.

Second, as to the constitutionality, I was referring above to the Georgia constitution which states plainly plainly that “[t]he right to trial by jury shall remain inviolate.” Ga. Const. of 1983, Art. I, Sec. I, Par. XI (a).

saltycracker January 24, 2014 at 8:59 pm

So, as mentioned, why not work on classifying/defining “jury” ?
Got a few anecdotal stories and experiences.

debbie0040 January 26, 2014 at 10:46 am

@Stefan, have you read the legislation? There are administrative law judges just like with workman’s comp.. Please also check out the GA Supreme Court rulings that are relevant and the “Foster-Crowell-Huhn rule” precedent that the GA S.C. has applied numerous times

My opinion is that some that oppose this attempted to get tea party activists to oppose this by shouting Un-Constitutional without realizing we don’t take anyone’s word for anything and do our own investigation. I firmly believe it is Constitutional.

The state has already removed the right to sue for:
1) Alienation of affection

2) Imminent Domain

3) Physician working for State

4) Physician working for Armed services

5) Physicians providing services at Charity Clinic

6) Physician providing “Good Samaritan” work in emergency

7) Physician working for Federal Government

8) Employers for being injured on job

Stefan January 27, 2014 at 6:02 pm

Do you mean eminent domain? I assume you mean sovereign immunity for some of the other ones. Do you really not see the difference between these things and medical negligence?

Just because you name a person an “ALJ” does not mean they are performing the functions fo a judge like in comp.

Max Power January 26, 2014 at 5:27 pm

Debbie,
I know the 7th Amendment has not yet been held by courts to be incorporated against the states but if Heller had not held the 2nd incorporated would you then support gun control legislation? In fact the language of the 7th Amendment undermines the central holding of Barron v. Baltimore (that the bill of rights applied only to the federal government) because to find that the 7th Amendment applies only to the federal government would grant a false right.

You see the Constitution only establishes one court, the US Supreme Court, and it’s a court of limited jurisdiction. So if the 7th Amendment only applies to the Federal Government and the Congress did not establish a system of inferior federal courts, the 7th Amendment would be a dead letter. So we have two options, the Founding Fathers wrote an Amendment that did not promise what it said, or all or part of the bill of rights was meant to grant protection and recognize rights from all levels of government. I know which interpretation I believe. However, I don’t expect this to change your view.

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