Sen. Charles Bethel, left, and Sen. Josh McKoon, at a state bar forum Thursday, said the bill to replace Georgia’s medical malpractice tort system would not advance in the legislature this year. (John Disney/Daily Report)
Legislation that would replace Georgia’s medical malpractice tort system with a worker’s compensation-like board appears to be dead on arrival this session, but bills regulating e-discovery and civil forfeiture and relaxing concealed carry restrictions are poised for consideration during the 2014 session that begins today.
Legislators have predicted a quick session because they face primaries two months earlier this year, in May, due to a federal court decision regarding absentee ballot deadlines. Lawmakers’ first priority will be deciding on a budget for 2015, which the General Assembly is constitutionally obligated to do.
In a legislative forum hosted Thursday by the State Bar of Georgia during its midyear meeting in Atlanta, the mention of the med-mal bill drew snickers from the audience and the five lawmakers sitting on the panel.
Senate Bill 141, which is backed by a coalition of health-care providers and administrators known as Patients for Fair Compensation, has been the subject of numerous, contentious hearings in the Senate Health and Human Services Committee since it was filed last session. Backers of the bill say the current tort system is flawed because it blocks injured patients with legitimate but low-value claims from receiving compensation and that a worker’s compensation type system would be fairer and more efficient. Among the bill’s biggest opponents are the Georgia Trial Lawyers Association and the Medical Association of Georgia, which contend it would unconstitutionally deny injured patients the right to trial by jury and prove to be overly bureaucratic and costly.
Sen. Charlie Bethel, a Republican lawyer from Dalton and one of the governor’s floor leaders, said he would be surprised if the bill made it to the Senate floor for a debate and vote this session.
“But it’s not going away because the problems it seeks to address aren’t either,” Bethel said. He said the bill is the wrong solution to a real and “natural problem” stemming from the current system—”that is the idea that our tort system from a public perception standpoint is imbalanced. Whether we agree with that or not, it’s a problem legislators are going to try to solve because they are elected by the public.”
Senate Judiciary Committee Chairman Josh McKoon, a Republican lawyer from Columbus, called the bill “ill-conceived.”
McKoon said that while state senators are each limited to 30 minutes of floor debate time per bill, he will use all of his time to speak out against the bill. “I’ve been working on lots of amendments as well,” he said. “I will certainly do everything I can to see that piece of legislation is defeated.”
House Speaker David Ralston, R-Blue Ridge, who is a lawyer, was not at the forum. Ralston said at a press conference on Thursday that SB 141 had a slim chance of passage in his chamber.
Another controversial bill that didn’t pass last session but faces better chances this session is Senate Bill 101, which would allow concealed carry of firearms on college campuses and some other places where they now are prohibited. The Legislature hotly debated that bill and other similar ones last session, and ultimately dropped a provision that would have allowed concealed carry in courthouses after judges expressed great concern.
Bethel indicated that lawmakers are willing to give a revised version of the legislation more favorable consideration this year.
“They are on our campuses now. Unless we are going to go to secured facility campuses, like a courthouse where you have a guard who is ostensibly guarding and protecting ingress and egress, we’re not having a debate on whether they are there; we are having a debate about whether those who have them there are rightly within the law,” Bethel said.
Rep. Stacey Evans, D-Smyrna, hinted at the opposition. She said a technical college president told her that his school couldn’t afford full-time law enforcement. Instead, the school relied on off-duty officers to patrol and work part-time. “If a law is passed by the General Assembly that sanctions carrying guns on campus, [the college president said], our insurance will require us to employ a full-time police department, and his message to me was that he can’t afford that,” said Evans.
She said the president also told her, “I’m trying to figure out how not to lay off more teachers next time or how I’m going to buy the equipment that I need.”
House Judiciary Chairman Wendell Willard, R-Sandy Springs, said among his top priorities will be advancing a bill regulating e-discovery and another regulating civil forfeitures, both of which he filed last session.
The e-discovery bill, known as House Bill 643, was drafted by a task force of judges and lawyers convened by the state bar last year. After subsequent meetings between lawmakers, plaintiff and defense lawyers and judges during the fall, a new version is expected to be filed soon. The bill would require both parties in a suit to meet and confer on discovery matters and allow the courts to factor in proportionality in discovery request disputes. The bill also would include a safe harbor provision dealing with spoliation. Willard said he expects further discussions will take place in his committee as plaintiff and defense lawyers continue to hammer out compromises.
The civil forfeiture bill failed to be called for a vote by the full House during the last session because of strong opposition from prosecutors and sheriffs, but Willard said he is confident there is less opposition now.
Willard and a panel of other lawmakers, district attorneys and sheriffs negotiated a new version this fall, which will roll back some of the changes in the original bill. Willard said he expects to file an amended version of House Bill 1 this week.
Prosecutors said they are willing to end their opposition to some of the proposed civil forfeiture regulations if the amended version contains changes agreed to in negotiations. Those changes include keeping the state’s burden of proof for seizing property at a preponderance of the evidence rather than raising it to clear and convincing evidence and keeping the threshold for non-judicial forfeitures at $25,000 rather than lowering it to $5,000. In return, prosecutors have agreed to create a trust fund through the Prosecuting Attorneys Council that will oversee the expenditure of forfeited assets and to file complaints in court seeking forfeiture any time an owner files a claim, regardless of the filing’s sufficiency.
Former bar president Lester Tate III, a member of the Judicial Qualifications Commission, asked the panel whether lawmakers have considered revising state law that provides for legal representation of certain state officials by the Law Department to explicitly include state and superior court judges. The state attorney general is designated as the lawyer for the state’s executive branch, but Tate said there have been several recent instances of trial judges who have been sued in their official capacities and need representation.
“I just came from a JQC meeting and we frequently get requests for opinions from judges asking, ‘Can we raise money to defend ourselves,’” Tate said. He added that it would be in the best interest of the public and judiciary to minimize judges’ need to seek outside funding.
Rep. Mary Margaret Oliver, D-Decatur, said DeKalb County provides legal representation for its judges, but Tate responded saying he didn’t think that was true for superior court judges. “I’m sure the county would be happy for the attorney general’s office to take over,” Oliver said.
Willard said he would consider a proposal from the JQC. Bar lobbyist Rusty Sewell advised any Georgia lawyer who has ideas for legislation to first approach their practice’s section of the bar. The section can then vet it and try to find a legislator to sponsor it.