Here is an article about a recent opinion of the Georgia Supreme Court (that state’s equivalent to the Court of Appeals of Maryland) that uphold “tort reform” laws passed by the Georgia legislature. These laws were passed in 2005 as part of a package of “tort reform” laws.
The court upheld a Draconian change in the standard of care for victims of medical negligence where the negligent doctor was providing care in an emergency room. In Maryland, doctors in any setting are held to a negligence standard. If the doctor failed to act as a reasonable health care provider would have under the circumstances, that is negligence.
Georgia has a different standard of care as a result of these 2005 laws. To recover for malpractice against a Georgia ER doctor, a plaintiff must prove “gross negligence” by “clear and convincing” evidence. I think Georgia is the only state in the country with a law like this. This changed the pre-existing law in two crucial ways.
First, it raises the standard of proof from a “more likely than not” standard. Essentially, this is the difference between 51% likely and 75% likely. Second, and most awfully, it raises the standard that must be violated to “gross negligence”, which means a failure to exercise even a slight degree of care.
I am not a Georgia malpractice lawyer, but the way I understand this is as follows: If the doctor cuts off the wrong leg because he is drunk, there is gross negligence. If he cuts off the wrong leg because he simply misread the chart, there is not. I imagine this is small comfort for the guy who lost the wrong leg. But hey, it’s all good- this law has reduced the number of medical malpractice lawsuits, and (thank god) has reduced doctor’s malpractice premiums. Guess why? Because it basically means that it will always be impossible to prove the doctor breached the standard of care.
The Georgia court determined that the legislature’s goal of making physicians’ malpractice insurance more affordable was a “legitimate legislative purpose.” This is just astonishing. I have a hard time conceiving a more unfair rule of law. Doing what is cheaper is not always the same thing as doing what is just.
This rule allows a Georgia ER doctor to walk up to a family and say something like “I am really sorry. I messed up because I just wasn’t paying attention. I am a little tired from staying up late to watch the playoffs. But I did my best, and I am sorry your mother is dead.” Under Georgia’s standard, that doctor is probably not liable for malpractice. If you can’t tell what is wrong with that, you have my pity.
I love doctors. I have one myself. I am a huge fan of the ER docs and on-call cardiologists who helped my Dad when he had a heart attack. It is important to have these kinds of doctors available. But that should not be at the price of immunizing whatever they do as long as they try hard and don’t intentionally hurt you.