Bills aiming to scrap the state’s medical malpractice tort system and codify binding arbitration agreements for nursing home residents are dead for the General Assembly session but could be resurrected next year.
Senate Health and Human Services Committee Chairwoman Renee Unterman, R-Buford, tabled Senate Bills 141 and 202 Monday after lengthy hearings on both. Monday was the last day in the Senate for bills to pass committees to ensure a full chamber vote in time for the 30th day, by which bills must pass their chamber of origin or die for the session.
Despite tabling the bills, Unterman, an insurance executive and former social worker and nurse, said work on the bills will resume after the General Assembly recesses in preparation for the 2014 session.
The Georgia Trial Lawyers Association, which opposes both bills, vowed to track them and continue to voice concerns.
SB 141, conceived by a group called Patients for Fair Compensation, would have replaced Georgia’s current medical malpractice claim system with a workers’ compensation-like board. Its legislative sponsor is Sen. Brandon Beach, R-Alpharetta, who is president and CEO of the Greater North Fulton Chamber of Commerce.
Beach and Patients for Fair Compensation said the overhaul would curb unnecessary and costly medical procedures because doctors would not have to practice "defensive medicine" to avoid lawsuits. The bill also would allow more injured patients to be compensated because plaintiffs’ lawyers under the current system are unlikely to take small-dollar cases. Finally, the proponents said injured patients would be compensated faster under the new process than in conventional litigation.
The bill drew opposition from the GTLA and its frequent ideological opposite—the Medical Association of Georgia—as well as MAG Mutual Insurance Co. They said the new claims process would create more bureaucracy, increase the number of claims and overall payouts by doctors and it would not be, as advertised, a blameless system for settling claims against doctors.
MAG hired former state Attorney General Mike Bowers, now a partner at Balch & Bingham, to review the legislation’s constitutionality. Bowers reiterated to the committee on Monday that he believes the proposal would not have "a snowball’s chance in Hades of passing constitutional muster."
Bowers rooted his opinion in the state Supreme Court’s unanimous 2010 decision in Atlanta Oculoplastic Surgery v. Nestlehutt, which overturned the part of the Legislature’s 2005 tort reform package capping pain and suffering damages in med-mal cases. The high court ruled the caps violated the constitutional right to trial by jury, a fatal problem Bowers found in replacing the med-mal system with a compensation board.
"I have been before the Supreme Court as much as any lawyer in the state, and I sat in on every interview with the justices while I was on the Judicial Nominating Committee. I know them. They are not going to uphold this act unless they get some kind of brain transplant," Bowers told the Senate committee.
McKenna Long & Aldridge, the firm hired by Patients for Fair Compensation to analyze the bill and lobby for it, offered a counter opinion. Although the firm did not say SB 141 is expressly constitutional—"We can’t predict with any certainty," said partner Ben Vinson—it believes Bowers is mistaken in his analysis of the Nestlehutt decision. The proposed patient compensation system is akin to workers compensation, which courts have upheld, Vinson argued.
"An overwhelming majority of the citizens in Georgia don’t have the right to a jury trial" unless they have money to hire an attorney, said Vinson. SB 141, he said, would give injured patients greater access to justice.
Unterman said she will appoint a five-member subcommittee, which will include herself, to work on the bill over the summer and fall. She also lauded Beach for his ambition in taking up such "daunting legislation" as a freshman lawmaker.
"We have come to the agreement there’s a lot more work to be done," Unterman told Beach during the hearing. "You are to be congratulated whether it makes it to the floor or not."
GTLA President Jay Sadd said his organization is "still confident the bill is so unconstitutional because it violates the right to trial by jury that at the end of the day it can’t pass in a form anywhere close to where it resides today."
SB 202, which is supported by the nursing home industry, would set out how nursing homes across the state could draft and present documents by which residents or their guardians agree to settle disputes through binding arbitration, rather than through the courts. Unterman, whose committee took up the bill, is the sponsor.
Jason Bring, a partner at Arnall Golden Gregory who represents the Georgia Health Care Association, told the committee last week that many nursing homes already present arbitration agreements to residents during the admission process. The bill would codify best practices, provide consumer protections and clarify who can sign such agreements on a resident’s behalf, he said.
The GTLA and elder advocacy groups spoke out against the bill, calling arbitration agreements sneaky and manipulative attempts to get vulnerable people in times of great stress to sign away their rights to trial by jury.
During continued committee discussion on Monday, Unterman proffered changes to her bill that would extend how long residents would have to back out of agreements, from 30 to 45 days after signing. Unterman was also willing to require that documents would have to state explicitly that a resident’s or guardian’s refusal to sign would not affect a resident’s admittance to a home or quality of care.
She also proposed narrowing language allowing adult children or spouses to sign arbitration agreements upon admitting a loved one to a nursing home. The new language would say that they would have the authority to sign "unless the resident has designated someone else under an existing advance directive for health care or power of attorney for health care … or a general power of attorney."
Sen. William Ligon Jr., R-Brunswick, a lawyer, offered an amended version of SB 202 that would have allowed residents or their guardians 30 days to review arbitration agreements before deciding whether to sign them.
"These contracts, now, are subject to the defense of duress," he said, meaning that residents could seek to have agreements nullified by claiming they felt forced to sign them.
Ligon’s version also included provisions that would have given residents or their families more say in the arbitration process, including agreement upon location, and would have struck the provisions allowing adult children or spouses to sign agreements.
During the committee meeting, Unterman ultimately agreed to incorporate some of Ligon’s amendments but not the ones giving residents or guardians 30 days after admittance to sign agreements and limiting who can sign agreements on residents’ behalf.
Realizing that she didn’t have the votes to pass her bill, Unterman tabled it and pledged to continue working with stakeholders before the start of the next session in 2014.