Supporters of scrapping Georgia’s medical malpractice system have fired back at criticism that their idea is unconstitutional and have signed up McKenna Long & Aldridge to make their case.

Patients for Fair Compensation, which is pushing legislation to replace the current system with a workers’ compensation-like board, this week issued a letter from the firm, which is also lobbying for the bill’s passage at the state Capitol.

The letter refuted an analysis, released last week by the Medical Association of Georgia, by former state Attorney General Michael Bowers of Balch & Bingham. Citing a state Supreme Court decision striking down a cap on pain-and-suffering damages in medical malpractice cases, Bowers wrote, "I don’t see any likelihood at all that that kind of bill would have any chance of being upheld if properly challenged."

In a Feb. 19 letter, McKenna Long & Aldridge wrote to Patients for Fair Compensation Chairman Richard Jackson that Bowers’ assessment of the law was wrong and that the proposal is not explicitly unconstitutional.

"If the [Patient Compensation System] simply eliminated a plaintiff’s ability to have a jury in medical injury cases, we would agree with Mr. Bowers’ analysis," states the letter, which was signed simply with the firm’s name. "But, such is not the case. The PCS creates a ‘Patient Compensation System’ that would supplant and serve as an alternative to an injured patient’s existing common law remedy."

The medical association opposes Senate Bill 141, the bill pushed by Patients for Fair Compensation. Bowers’ opinion said that replacing the medical malpractice system with an executive branch compensation board would not withstand constitutional challenge per the 2010 damages caps case by the Georgia Supreme Court, Atlanta Oculoplastic Surgery v. Nestlehutt.

Bowers asserted that, like caps on damages, the proposed Patient Compensation System would violate the constitutional right to trial by jury.

R. Matthew Martin, a McKenna complex commercial litigation partner, said he was the primary author of the firm’s letter. He said the Nestlehutt decision doesn’t support Bowers’ conclusion.

"The court in Nestlehutt addressed a very limited issue. The court said that a cap on non-economic damages violated the Georgia Constitution because it invaded the provenance of the jury in med-mal cases. The court did not address whether or not the Legislature has the authority to replace the common law remedy with a new system, which would be akin to workers’ compensation," Martin said.

The McKenna letter states that Georgia’s workers’ compensation system has withstood constitutional challenges.

Bowers, in his earlier letter, states that the two systems are not akin: "Although similar in concept, the Patient Compensation System created by the Act [SB 141] is distinguishable from Georgia’s workers’ compensation system because, unlike patients injured by medical negligence, workers injured on the job had no right at common law to a jury trial for claims against their employer at the time the Georgia Constitution of 1798 was adopted."

McKenna’s letter claims Bowers is mistaken in his analysis, which was based on the 1928 state Supreme Court decision in Metropolitan Casualty Insurance Co. of New York v. Huhn, 165 Ga. 667.

"The Georgia Supreme Court held that the rights created under the workers’ compensation system post-dated the Georgia Constitution of 1798, and, therefore, the constitutional right to trial by jury did not exist as to those newly-created rights," McKenna’s letter states. "The same analysis would hold true for the remedies that the PCS would create."

Basically, Bowers "is expanding the holdings of those cases [Nestlehutt and Huhn] beyond the specific issues that the courts were addressing," Martin said.

Bowers could not be reached for comment on Thursday.

MAG Executive Director and CEO Donald Palmisano Jr. responded that his association stands by Bowers’ analysis. Palmisano also pointed out that McKenna’s letter does not expressly state that the Patients Compensation System is constitutional.

McKenna’s letter says cautiously, "The outcome of any constitutional challenge cannot be predicted with any certainty. The Nestlehutt decision, however, does not answer the question of the constitutionality of an administrative system such as the PCS."

The letter further states that if a court were to invalidate the PCS, supposing SB 141 is enacted, that decision would undermine the constitutional validity of the state’s workers’ compensation system.

Palmisano said he finds Patients for Fair Compensation’s analogy to workers’ compensation "questionable."

The Georgia Trial Lawyers Association also opposes SB 141. GTLA’s chief lobbyist Bill Clark said there are two reasons the state’s workers’ compensation system is an acceptable exception to the constitutional right to trial by jury and why the Patients Compensation System is not.

"One is that [workers' compensation] is a no-fault system," he said. "The quid pro quo is that an injured worker does not have to prove fault. That doesn’t exist in the patient compensation scheme. And two, the creation of the workers’ compensation system created new rights that did not exist before. This bill does not create new rights; it restricts long-held common law rights.

"McKenna Long’s opinion is, at best, a self-serving letter from its legal department to help its lobbying department," he added.

The Senate Health and Human Services Committee has scheduled the first hearing on SB 141 for Feb. 27 at the Capitol.