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Bill would repeal strict rule for emergency room cases

Some Georgia Republican lawmakers fear that last year's landmark state tort law went too far in making it harder for plaintiffs to win malpractice suits against emergency-room doctors.

State Senate Bill 232, sponsored by six Republicans, would repeal the section of last year's bill that said malpractice plaintiffs must prove with clear and convincing evidence that emergency-room doctors acted with "gross negligence."

"Part of lawmaking is not swinging too far to the left or the right, making sure the law is in the best interest of the masses," said Sen. Joseph I. Carter, R-Tifton, who's leading the effort to lower the emergency-room standard.

"To me, clearly, [requiring proof of gross negligence] is not in everyone's best interests," said Carter, a business litigation attorney with Carter & Richbourg in Tifton, Ga.

But Sen. Preston W. Smith, R-Rome, the chairman of the Senate Judiciary Committee who shepherded last year's tort bill to passage, said he's probably unwilling to address SB 232 because it would reopen the debate on the broader tort law.

"We don't want to open a larger policy debate," Smith said.

In a malpractice suit against a non-ER doctor, the plaintiff must only show simple negligence, said University of Georgia tort law professor Thomas A. Eaton.

Simple negligence is proving that a doctor's "conduct fell below the customary and accepted practices of the profession," Eaton said. Gross negligence is proving that a doctor was "not just careless, but very, very careless," he said.

Carter's legislation has five co-sponsors, all Republicans, including the Senate's GOP whip, Mitchell W. Seabaugh of Sharpsburg.

Having Republican support for legislation to change tort laws is critical. Last year's tort law, which capped pain and suffering damages in medical malpractice suits at $350,000, passed only after Republicans achieved a majority in both houses of the General Assembly.

Democrats, who controlled Georgia's statehouse for more than a century, had blocked efforts by physicians, hospitals and insurance companies to change the tort law.

The debate over ER standards is one of at least three issues from last year's tort law that could be revisited this year.

The so-called "offer of settlement" provision, which encourages parties to settle their cases or risk paying the other side's attorney fees, has been criticized by some legal scholars and practicing attorneys as confusing.

A provision that allows a nonresident defendant in a medical malpractice case to transfer the venue to the county of the defendant's residence was struck down last March by DeKalb County State Court Judge J. Antonio DelCampo.

Rep. Wendell K. Willard, R-Sandy Springs, chairman of the House Judiciary Committee, said he may try to codify DelCampo's ruling.

Smith said he is willing to discuss the offer-of-settlement and venue issues. But if the gross negligence issue were to come up before the Senate Judiciary Committee, it could open the floodgates to a wave of lobbying by pro- and anti-tort law groups that could overwhelm this year's legislative session, he said.

But Carter said Smith's concern is unnecessary. Carter's legislation could be engrossed by a vote of the full Senate, a move that could prevent discussion of other parts of the full tort law. If the full Senate agrees to engross a bill, then the bill cannot be amended.

The Senate's top-ranking Republican, Eric B. Johnson of Savannah, said some talks have been held among legislative leaders about the tort law, but no decisions have been made about what elements, if any, will come up for review this year.

If Carter's legislation passes the Senate, it likely would be assigned in the House to a special committee on tort laws. That committee's chairman, Rep. Barry A. Fleming, R-Harlem and a partner at Fulcher Hagler in Augusta, said he's held no talks with Carter, but if the Senate passes the bill, he would be willing to discuss it.

Smith is correct when he assumes a debate over the gross negligence standard would reignite passions among doctors and plaintiffs lawyers.

The Medical Association of Georgia, a professional association for physicians, opposes Carter's legislation on lowering the standard of negligence for emergency doctors.

"When people come into the emergency room, doctors don't have the complete medical history of the patient available, and they don't know the medicines the patient is taking," said Deborah J. Winegard, general counsel for the Medical Association of Georgia. "They are suffering from acute symptoms that need be dealt with right away."

But William T. Clark, a lobbyist for the Georgia Trial Lawyers Association, said numerous attorneys contacted state legislators over the summer saying the portion of the tort law relating to ER docs was too strict.

"A number of legislators have approached us, expressing essentially buyers' remorse and admitting they went too far and asking if it would be a reasonable remedy to go back to the normal negligence standard," Clark said.

"The law goes way beyond the realm of rational thinking to legislate away all causes of action except those that are just short of criminal harm," he said.

Clark believes there is considerable support for the law in the Georgia Legislature.

"We have the votes to pass it in the Senate," Clark said. "It will depend on whether we can get a vote in the Senate Judiciary Committee."

Rep. Edward H. Lindsey Jr., R-Atlanta, vice chairman of the House Judiciary Committee, said he knows some lawyers have questioned the higher standard of proof for plaintiffs in a case against ER doctors.

Lindsey declined to comment on whether he supports Carter's legislation to change that part of the law.

"The policy was set last year by an overwhelming majority in the House and Senate," said Lindsey, a partner at Goodman McGuffey Lindsey & Johnson. "Now's it's up to us who understand the judiciary to make that public policy work fairly and equitable for parties."

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