By: Senators Smith of the 52nd, Johnson of the 1st, Seabaugh
of the 28th, Stephens of the 27th, Hamrick of the 30th and others
AS PASSED
AN ACT
To amend Titles 9, 24, 33, 43, and 51 of the Official
Code of Georgia Annotated, relating respectively to civil
practice; evidence; insurance; professions and businesses;
and torts, so as to provide for substantive and comprehensive
revision of provisions regarding civil practice, evidentiary
matters, and liability in tort actions in general and actions
related to health care in particular; to provide for legislative
findings; to change provisions relating to venue in actions
with joint defendants; to provide that the courts of this
state may under certain circumstances decline to decide
cases under the doctrine of forum non conveniens; to change
provisions relating to affidavits accompanying charges
of professional malpractice; to provide for defendants´ access
to plaintiffs´ health information in medical malpractice
cases; to provide for offers for judgment and the effect thereof;
to provide new procedures for damages for frivolous claims and
defenses; to provide that certain statements of apology or similar
statements by health care providers shall not be admitted as
evidence in civil actions; to change provisions relating to opinions
of experts in civil cases; to create provisions regarding expert
opinions in certain malpractice civil actions; to change provisions
relating to reporting of medical malpractice judgments and settlements;
to provide for investigations and remedial actions with respect
to physicians´ fitness to practice under certain
circumstances; to change provisions relating to establishment
of liability and standard of care in certain actions relating
to emergency health care; to change provisions relating
to agency liability of hospitals; to change provisions
relating to apportionment of award according to degree
of fault; to create provisions relating to apportioning
damages in certain malpractice actions; to limit noneconomic
damages in certain actions relating to health care; to
provide for payment over time of certain future damages
in certain actions; to provide for related matters; to
provide for severability; to provide for an effective date
and applicability; to repeal conflicting laws; and for
other purposes.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA
:
SECTION 1.
The General Assembly finds that there presently exists a crisis
affecting the provision and quality of health care services in
this state. Hospitals and other health care providers in this
state are having increasing difficulty in locating liability
insurance and, when such hospitals and providers are able to
locate such insurance, the insurance is extremely costly. The
result of this crisis is the potential for a diminution of the
availability of access to health care services and a resulting
adverse impact on the health and well-being of the citizens of
this state. The General Assembly further finds that certain civil
justice and health care regulatory reforms as provided in this
Act will promote predictability and improvement in the provision
of quality health care services and the resolution of health
care liability claims and will thereby assist in promoting the
provision of health care liability insurance by insurance providers.
The General Assembly further finds that certain needed reforms
affect not only health care liability claims but also other civil
actions and accordingly provides such general reforms in this
Act.
SECTION 2.
Title 9 of the Official Code of Georgia Annotated, relating
to civil practice, is amended by striking Code Section 9-10-31,
relating to actions against certain codefendants residing in
different counties, and inserting in its place new Code Sections
9-10-31 and 9-10-31.1 to read as follows:
9-10-31.
(a) The General Assembly finds that Paragraph IV of Section
II of Article VI of the Georgia Constitution permits a trial
and entry of judgment against a resident of Georgia in a county
other than the county of the defendant's residence only if the
Georgia resident defendant is a joint obligor, joint tort-feasor,
joint promisor, copartner, or joint trespasser.
(b) Subject to the provisions of Code Section 9-10-31.1, joint
tort-feasors, obligors, or promisors, or joint contractors or
copartners, residing in different counties, may be subject to
an action as such in the same action in any county in which one
or more of the defendants reside.
(c) In any action involving a medical malpractice claim as defined
in Code Section 9-9-60, a nonresident defendant may require that
the case be transferred to the county of that defendant's residence
if the tortious act upon which the medical malpractice claim
is based occurred in the county of that defendant's residence.
(d) If all defendants who reside in the county in which an action
is pending are discharged from liability before or upon the return
of a verdict by the jury or the court hearing the case without
a jury, a nonresident defendant may require that the case be
transferred to a county and court in which venue would otherwise
be proper. If venue would be proper in more than one county,
the plaintiff may elect from among the counties in which venue
is proper the county and the court in which the action shall
proceed.
(e) Nothing in this Code section shall be deemed to alter or
amend the pleading requirements of Chapter 11 of this title relating
to the filing of complaints or answers.
9-10-31.1.
(a) If a court of this state, on written motion of a party,
finds that in the interest of justice and for the convenience
of the parties and witnesses a claim or action would be more
properly heard in a forum outside this state or in a different
county of proper venue within this state, the court shall decline
to adjudicate the matter under the doctrine of forum non conveniens.
As to a claim or action that would be more properly heard in
a forum outside this state, the court shall dismiss the claim
or action. As to a claim or action that would be more properly
heard in a different county of proper venue within this state,
the venue shall be transferred to the appropriate county. In
determining whether to grant a motion to dismiss an action or
to transfer venue under the doctrine of forum non conveniens,
the court shall give consideration to the following factors:
(1) Relative ease of access to sources of proof;
(2) Availability and cost of compulsory process for attendance
of unwilling witnesses;
(3) Possibility of viewing of the premises, if viewing would
be appropriate to the action;
(4) Unnecessary expense or trouble to the defendant not necessary
to the plaintiff's own right to pursue his or her remedy;
(5) Administrative difficulties for the forum courts;
(6) Existence of local interests in deciding the case locally;
and
(7) The traditional deference given to a plaintiff's choice
of forum.
(b) A court may not dismiss a claim under this Code section
until the defendant files with the court or with
the clerk of the court a written stipulation that, with
respect to a new action on the claim commenced by the
plaintiff, all the defendants waive the right to assert a
statute of limitations defense in all other states of the
United States in which the claim was not barred by limitations
at the time the claim was filed in this state as necessary
to effect a tolling of the limitations periods in those
states beginning on the date the claim was filed in this
state and ending on the date the claim is dismissed.
SECTION 3.
Title 9 of the Official Code of Georgia Annotated, relating
to civil practice, is amended by striking Code Section 9-11-9.1,
relating to affidavits in professional malpractice cases, and
inserting in its place a new Code section to read as follows:
9-11-9.1.
(a) In any action for damages alleging professional malpractice
against a professional licensed by the State of Georgia and listed
in subsection(d) of this Code section or against any licensed
health care facility alleged to be liable based upon the action
or inaction of a health care professional licensed by the State
of Georgia and listed in subsection(d) of this Code section,
the plaintiff shall be required to file with the complaint an
affidavit of an expert competent to testify, which affidavit
shall set forth specifically at least one negligent act or omission
claimed to exist and the factual basis for each such claim.
(b) If a plaintiff files an affidavit which is allegedly defective,
and the defendant to whom it pertains alleges, with specificity,
by motion to dismiss filed on or before the close of discovery,
that said affidavit is defective, the plaintiff's complaint is
subject to dismissal for failure to state a claim, except that
the plaintiff may cure the alleged defect by amendment pursuant
to Code Section 9-11-15 within 30 days of service of the motion
alleging that the affidavit is defective. The trial court may,
in the exercise of its discretion, extend the time for filing
said amendment or response to the motion, or both, as it shall
determine justice requires.
(c) If a plaintiff fails to file an affidavit as required by
this Code section and the defendant raises the failure to file
such an affidavit by motion to dismiss filed contemporaneously
with its initial responsive pleading, such complaint shall not
be subject to the renewal provisions of Code Section 9-2-61 after
the expiration of the applicable period of limitation, unless
a court determines that the plaintiff had the requisite affidavit
within the time required by this Code section and the failure
to file the affidavit was the result of a mistake.
(d) The professions to which this Code section applies are:
(1) Architects;
(2) Audiologists;
(3) Attorneys at law;
(4) Certified public accountants;
(5) Chiropractors;
(6) Clinical social workers;
(7) Dentists;
(8) Dietitians;
(9) Land surveyors;
(10) Medical doctors;
(11) Marriage and family therapists;
(12) Nurses;
(13) Occupational therapists;
(14) Optometrists;
(15) Osteopathic physicians;
(16) Pharmacists;
(17) Physical therapists;
(18) Physicians´ assistants;
(19) Professional counselors;
(20) Professional engineers;
(21) Podiatrists;
(22) Psychologists;
(23) Radiological technicians;
(24) Respiratory therapists;
(25) Speech-language pathologists; or
(26) Veterinarians.
SECTION 4.
Title 9 of the Official Code of Georgia Annotated, relating
to civil practice, is amended by inserting a new Code Section
9-11-9.2 to read as follows:
9-11-9.2.
(a) In any action for damages alleging medical malpractice against
a professional licensed by the State of Georgia and listed in
subsection (d) of Code Section 9-11-9.1, against a professional
corporation or other legal entity that provides health care services
through a professional licensed by the State of Georgia and listed
in subsection (d) of Code Section 9-11-9.1, or against any licensed
health care facility alleged to be liable based upon the action
or inaction of a health care professional licensed by the State
of Georgia and listed in subsection (d) of Code Section 9-11-9.1,
contemporaneously with the filing of the complaint, the plaintiff
shall be required to file a medical authorization form. Failure
to provide this authorization shall subject the complaint to
dismissal.
(b) The authorization shall provide that the attorney
representing the defendant is authorized to obtain and
disclose protected health information contained in medical
records to facilitate the investigation, evaluation,
and defense of the claims and allegations set forth in the
complaint which pertain to the plaintiff or, where applicable,
the plaintiff's decedent whose treatment is at issue
in the complaint. This authorization includes the defendant's
attorney´s right to discuss
the care and treatment of the plaintiff or, where
applicable, the plaintiff's decedent with all of the
plaintiff's or decedent's treating physicians.
(c) The authorization shall provide for the release of
all protected health information except information that
is considered privileged and shall authorize the release
of such information by any physician or health care facility
by which health care records of the plaintiff or the
plaintiff's decedent would be maintained.
SECTION 5.
Title 9 of the Official Code of Georgia Annotated, relating
to civil practice, is amended by inserting in place of Code Section
9-11-68, which is reserved, a new Code Section 9-11-68 to read
as follows:
9-11-68.
(a) At any time more than 30 days after the service of a summons
and complaint on a party but not less than 30 days (or 20 days
if it is a counteroffer) before trial, either party may serve
upon the other party, but shall not file with the court, a written
offer, denominated as an offer under this Code section, to settle
a tort claim for the money specified in the offer and to enter
into an agreement dismissing the claim or to allow judgment to
be entered accordingly. Any offer under this Code section must:
(1) Be in writing and state that it is being made pursuant to
this Code section;
(2) Identify the party or parties making the proposal and the
party or parties to whom the proposal is being made;
(3) Identify generally the claim or claims the proposal is attempting
to resolve;
(4) State with particularity any relevant conditions;
(5) State the total amount of the proposal;
(6) State with particularity the amount proposed to settle a
claim for punitive damages, if any;
(7) State whether the proposal includes attorney´s fees
or other expenses and whether attorney´s fees or
other expenses are part of the legal claim; and
(8) Include a certificate of service and be served by certified
mail or statutory overnight delivery in the form required by
Code Section 9-11-5.
(b) When the complaint sets forth a tort claim for money,
if the offeree rejects or does not accept the offer
and the judgment finally obtained by the offeree was
not at least 25 percent more favorable than the last offer,
the offeree shall pay the offeror's reasonable attorney´s
fees and costs incurred after the rejection of the last
offer.
(c) Any offer made under this Code section shall remain
open for 30 days unless sooner withdrawn by a writing
served on the offeree prior to acceptance by the offeree,
but an offeror shall not be entitled to attorney´s
fees and costs under subsection (b) of this Code section
to the extent an offer is not open for at least 30 days
(unless it is rejected during that 30 day period). A
counteroffer shall be deemed a rejection but may serve
as an offer under this Code section if it is specifically
denominated as an offer under this Code section. Acceptance
or rejection of the offer by the offeree must be in writing
and served upon the offeror. An offer that is neither
withdrawn nor accepted within 30 days shall be deemed
rejected. The fact that an offer is made but not accepted
does not preclude a subsequent offer. Evidence of an
offer is not admissible except in proceedings to enforce
a settlement or to determine reasonable attorney's fees
and costs under this Code section.
(d) Upon motion made within 30 days of the entry of the judgment
or after voluntary or involuntary dismissal, the court shall
determine the following:
(1) If the offer of judgment was 25 percent more favorable
than the monetary award, the court shall award reasonable
attorney´s
fees and costs and the court shall set off such reasonable attorney´s
fees and costs against any award; and
(2) If a party is entitled to costs and fees pursuant
to the provisions of this Code section, the court may
determine that an offer was not made in good faith in an
order setting forth the basis for such a determination. In
such case, the court may disallow an award of attorney´s
fees and costs.
(e) Upon motion by the prevailing party at the time that the
verdict or judgment is rendered, the moving party may request
that the finder of fact determine whether the opposing party
presented a frivolous claim or defense. In such event, the court
shall hold a separate bifurcated hearing at which the finder
of fact shall make a determination of whether such frivolous
claims or defenses were asserted and to award damages, if any,
against the party presenting such frivolous claims or defenses.
Under this subsection:
(1) Frivolous claims shall include, but are not limited to,
the following:
(A) A claim, defense, or other position that lacks substantial
justification or that is not made in good faith or that is made
with malice or a wrongful purpose, as those terms are defined
in Code Section 51-7-80;
(B) A claim, defense, or other position with respect to which
there existed such a complete absence of any justiciable issue
of law or fact that it could not be reasonably believed that
a court would accept the asserted claim, defense, or other position;
and
(C) A claim, defense, or other position that was interposed
for delay or harassment;
(2) Damages awarded may include reasonable and necessary
attorney´s
fees and expenses of litigation; and
(3) A party may elect to pursue either the procedure specified
in this subsection or the procedure specified in
Code Section 9-15-14, but not both.
SECTION 6.
Title 24 of the Official Code of Georgia Annotated, relating
to evidence, is amended by inserting after 24-3-37 a new Code
Section 24-3-37.1 to read as follows:
24-3-37.1.
(a) The General Assembly finds that conduct, statements, or
activity constituting voluntary offers of assistance or expressions
of benevolence, regret, mistake, error, sympathy, or apology
between or among parties or potential parties to a civil action
should be encouraged and should not be considered an admission
of liability. The General Assembly further finds that such conduct,
statements, or activity should be particularly encouraged between
health care providers and patients experiencing an unanticipated
outcome resulting from their medical care. Regulatory and accreditation
agencies are in some instances requiring health care providers
to discuss the outcomes of their medical care and treatment with
their patients, including unanticipated outcomes, and studies
have shown such discussions foster improved communications and
respect between provider and patient, promote quicker recovery
by the patient, and reduce the incidence of claims and lawsuits
arising out of such unanticipated outcomes. The General Assembly
therefore concludes certain steps should be taken to promote
such conduct, statements, or activity by limiting their admissibility
in civil actions.
(b) As used in this Code section, the term:
(1) 'Health care provider' means any person licensed under Chapter
9, 10A, 11, 11A, 26, 28, 30, 33, 34, 35, 39, or 44 of Title 43
or any hospital, nursing home, home health agency, institution,
or medical facility licensed or defined under Chapter 7 of Title
31. The term shall also include any corporation, professional
corporation, partnership, limited liability company, limited
liability partnership, authority, or other entity comprised of
such health care providers.
(2) 'Unanticipated outcome' means the outcome of a medical treatment
or procedure, whether or not resulting from an intentional act,
that differs from an expected or intended result of such medical
treatment or procedure.
(c) In any claim or civil action brought by or on behalf
of a patient allegedly experiencing an unanticipated
outcome of medical care, any and all statements, affirmations,
gestures, activities or conduct expressing benevolence,
regret, apology, sympathy, commiseration, condolence,
compassion, mistake, error, or a general sense of benevolence
which are made by a health care provider or an employee or
agent of a health care provider to the patient, a relative
of the patient, or a representative of the patient and which
relate to the unanticipated outcome shall be inadmissible
as evidence and shall not constitute an admission of
liability or an admission against interest.
SECTION 7.
Title 24 of the Official Code of Georgia Annotated, relating
to evidence, is amended by striking Code Section 24-9-67, relating
to expert opinion evidence, and inserting in its place new Code
Sections 24-9-67 and 24-9-67.1 to read as follows:
24-9-67.
In criminal cases, the opinions of experts on any question of
science, skill, trade, or like questions shall always be admissible;
and such opinions may be given on the facts as proved by other
witnesses.
24-9-67.1
(a) The provisions of this Code section shall apply in all civil
actions. The opinion of a witness qualified as an expert under
this Code section may be given on the facts as proved by other
witnesses. The facts or data in the particular case upon which
an expert bases an opinion or inference may be those perceived
by or made known to the expert at or before the hearing or trial.
If of a type reasonably relied upon by experts in the particular
field in forming opinions or inferences upon the subject, the
facts or data need not be admissible in evidence in order for
the opinion or inference to be admitted. Facts or data that are
otherwise inadmissible shall not be disclosed to the jury by
the proponent of the opinion or inference unless the court determines
that their probative value in assisting the jury to evaluate
the expert's opinion substantially outweighs their prejudicial
effect.
(b) If scientific, technical, or other specialized knowledge
will assist the trier of fact in any cause of action to understand
the evidence or to determine a fact in issue, a witness qualified
as an expert by knowledge, skill, experience, training, or education
may testify thereto in the form of an opinion or otherwise, if:
(1) The testimony is based upon sufficient facts or data which
are or will be admitted into evidence at the hearing or trial;
(2) The testimony is the product of reliable principles and
methods; and
(3) The witness has applied the principles and methods reliably
to the facts of the case.
(c) Notwithstanding the provisions of subsection (b) of this
Code section and any other provision of law which might be construed
to the contrary, in professional malpractice actions, the opinions
of an expert, who is otherwise qualified as to the acceptable
standard of conduct of the professional whose conduct is at issue,
shall be admissible only if, at the time the act or omission
is alleged to have occurred, such expert:
(1) Was licensed by an appropriate regulatory agency to practice
his or her profession in the state in which such expert was practicing
or teaching in the profession at such time; and
(2) In the case of a medical malpractice action, had actual
professional knowledge and experience in the area of practice
or specialty in which the opinion is to be given as the result
of having been regularly engaged in:
(A) The active practice of such area of specialty of his or
her profession for at least three of the last five years, with
sufficient frequency to establish an appropriate level of knowledge,
as determined by the judge, in performing the procedure, diagnosing
the condition, or rendering the treatment which is alleged to
have been performed or rendered negligently by the defendant
whose conduct is at issue; or
(B) The teaching of his or her profession for at least three
of the last five years as an employed member of the faculty of
an educational institution accredited in the teaching of such
profession, with sufficient frequency to establish an appropriate
level of knowledge, as determined by the judge, in teaching others
how to perform the procedure, diagnose the condition, or render
the treatment which is alleged to have been performed or rendered
negligently by the defendant whose conduct is at issue; and
(C) Except as provided in subparagraph (D) of this paragraph:
(i) Is a member of the same profession;
(ii) Is a medical doctor testifying as to the standard of care
of a defendant who is a doctor of osteopathy; or
(iii) Is a doctor of osteopathy testifying as to the standard
of care of a defendant who is a medical doctor; and
(D) Notwithstanding any other provision of this Code section,
an expert who is a physician and, as a result of having, during
at least three of the last five years immediately preceding the
time the act or omission is alleged to have occurred, supervised,
taught, or instructed nurses, nurse practitioners, certified
registered nurse anesthetists, nurse midwives, physician's assistants,
physical therapists, occupational therapists, or medical support
staff, has knowledge of the standard of care of that health care
provider under the circumstances at issue shall be competent
to testify as to the standard of that health care provider. However,
a nurse, nurse practitioner, certified registered nurse anesthetist,
nurse midwife, physician's assistant, physical therapist, occupational
therapist, or medical support staff shall not be competent to
testify as to the standard of care of a physician.
(d) Upon motion of a party, the court may hold a pretrial hearing
to determine whether the witness qualifies as an expert and whether
the expert's testimony satisfies the requirements of subsections
(a) and (b) of this Code section. Such hearing and ruling shall
be completed no later than the final pretrial conference contemplated
under Code Section 9-11-16.
(e) An affiant must meet the requirements of this Code section
in order to be deemed qualified to testify as an expert by means
of the affidavit required under Code Section 9-11-9.1.
(f) It is the intent of the legislature that, in all civil
cases, the courts of the State of Georgia not be
viewed as open to expert evidence that would not be admissible
in other states. Therefore, in interpreting and applying
this Code section, the courts of this state may draw
from the opinions of the United States Supreme Court in Daubert
v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993);
General Electric Co. v. Joiner, 522 U.S. 136 (1997);
Kumho Tire Co. Ltd. v. Carmichael, 526 U.S. 137 (1999); and
other cases in federal courts applying the standards announced
by the United States Supreme Court in these cases.
SECTION 8.
Title 33 of the Official Code of Georgia Annotated, relating
to insurance, is amended by striking subsection (b) of Code Section
33-3-27, relating to reports of medical malpractice judgments
and settlements, and inserting in its place a new subsection
(b) to read as follows:
(b) Every insurer providing medical malpractice insurance
coverage in this state shall notify in writing the
Composite State Board of Medical Examiners when it pays
a judgment or enters into an agreement to pay an amount
to settle a medical malpractice claim against a person
authorized by law to practice medicine in this state.
Such judgments or agreements shall be reported to the board
regardless of the dollar amount. Such notice shall be
sent within 30 days after the judgment has been paid or the
agreement has been entered into by the parties involved
in the claim.
SECTION 9.
Title 43 of the Official Code of Georgia Annotated, relating
to professions and businesses, is amended by striking subsection
(i) of Code Section 43-34-37, relating to disciplinary actions
involving physicians, and inserting in its place new subsections
(i) and (j) to read as follows:
(i) The board shall investigate a licensee's or permit
holder's fitness to practice medicine if the board
has received a notification, pursuant to Code Section 33-3-27,
regarding that licensee or permit holder of a medical
malpractice judgment or settlement in excess of $100,000.00
or a notification pursuant to Code Section 33-3-27 that there
have been two or more previous judgments against or settlements
with the licensee or permit holder relating to the practice
of medicine involving an action for medical malpractice.
Every licensee or permit holder shall notify the board
of any settlement or judgment involving the licensee
or permit holder involving an action for medical malpractice.
(j) The board shall conduct an assessment of a licensee's
fitness to practice medicine if it has disciplined
the licensee three times in the last ten years as a result
of an action for medical malpractice. The assessment
shall include an examination of the licensee's entire history
with respect to the practice of medicine and a one day
on-site visit to the licensee's current practice location.
The assessment shall be completed within six months of
the third disciplinary action. As a result of its findings
the board may take any action it deems necessary to reduce
medical errors and promote patient safety, including
revocation, suspension, or limiting the licensee's license
or requiring additional clinical training, additional continuing
medical education, proctoring, or referral to appropriate
rehabilitation facilities. As used in this subsection, the
term 'action for medical malpractice' shall have the same
meaning as provided in Code Section 9-3-70. The board shall
implement this subsection upon the effective date of a specific
appropriation of funds for purposes of this subsection as
expressed in a line item making specific reference to the
full funding of this subsection in an appropriations Act
enacted by the General Assembly.
SECTION 10.
Title 51 of the Official Code of Georgia Annotated, relating
to torts, is amended by adding a new Code section immediately
following Code Section 51-1-29.4, to be designated Code Section
51-1-29.5 to read as follows:
51-1-29.5.
(a) As used in this Code section, the term:
(1) 'Affiliate' means a person who, directly or indirectly through
one or more intermediaries, controls, is controlled by, or is
under common control with a specified person, including any direct
or indirect parent or subsidiary.
(2) 'Claimant' means a person, including a decedent's estate,
who seeks or has sought recovery of damages in a health care
liability claim. All persons claiming to have sustained damages
as the result of the bodily injury or death of a single person
are considered a single claimant.
(3) 'Control' means the possession, directly or indirectly,
of the power to direct or cause the direction of the management
and policies of the person, whether through ownership of equity
or securities, by contract, or otherwise.
(4) 'Court' means any federal or state court.
(5) 'Emergency medical care' means bona fide emergency
services provided after the onset of a medical or traumatic
condition manifesting itself by acute symptoms of sufficient
severity, including severe pain, such that the absence
of immediate medical attention could reasonably be expected
to result in placing the patient´s health in serious
jeopardy, serious impairment to bodily functions, or
serious dysfunction of any bodily organ or part. The
term does not include medical care or treatment that
occurs after the patient is stabilized and is capable
of receiving medical treatment as a nonemergency patient
or care that is unrelated to the original medical emergency.
(6) 'Emergency medical services provider' means any person providing
emergency medical care.
(7) 'Health care' means any act or treatment performed
or furnished, or that should have been performed or furnished,
by any health care provider for, to, or on behalf
of a patient during the patient´s
medical care, treatment, or confinement.
(8) 'Health care institution' means:
(A) An ambulatory surgical center;
(B) A personal care home licensed under Chapter 7 of Title 31;
(C) An institution providing emergency medical services;
(D) A hospice;
(E) A hospital;
(F) A hospital system;
(G) An intermediate care facility for the mentally retarded;
or
(H) A nursing home.
(9) 'Health care liability claim' means a cause of action against
a health care provider or physician for treatment, lack of treatment,
or other claimed departure from accepted standards of medical
care, health care, or safety or professional or administrative
services directly related to health care, which departure from
standards proximately results in injury to or death of a claimant.
(10) 'Health care provider' means:
(A) Any person, partnership, professional association, corporation,
facility, or institution duly licensed, certified, registered,
or chartered by the State of Georgia to provide health care,
including but not limited to:
(i) A registered nurse;
(ii) A dentist;
(iii) A podiatrist;
(iv) A pharmacist;
(v) A chiropractor;
(vi) An optometrist; or
(vii) A health care institution; and
(B) Any person who is:
(i) An officer, director, shareholder, member, partner, manager,
owner, or affiliate of a health care provider or physician; or
(ii) An employee, independent contractor, or agent of a health
care provider or physician acting in the course and scope of
the employment or contractual relationship.
(11) 'Hospice' means a facility licensed as such under the 'Georgia
Hospice Law,' Article 9 of Chapter 7 of Title 31.
(12) 'Hospital' means a facility licensed as such under Chapter
7 of Title 31.
(13) 'Hospital system' means a system of hospitals located in
this state that are under the common governance or control of
a corporate parent.
(14) 'Medical care' means any act defined as the practice of
medicine under Code Section 43-34-20.
(15) 'Nursing home' means a facility licensed as such under
Chapter 7 of Title 31.
(16) 'Pharmacist' means a person licensed as such under Chapter
4 of Title 26.
(17) 'Physician' means an individual licensed to practice medicine
in this state, a professional association organized by an individual
physician or group of physicians, or a partnership or limited
liability partnership formed by a group of physicians.
(18) 'Professional or administrative services' means those duties
or services that a physician or health care provider is required
to provide as a condition of maintaining the physician's or health
care provider's license, accreditation status, or certification
to participate in state or federal health care programs.
(b) Any legal term or word of art used in this chapter, not
otherwise defined in this chapter, shall have such meaning as
is consistent with the common law.
(c) In an action involving a health care liability claim arising
out of the provision of emergency medical care in a hospital
emergency department or obstetrical unit or in a surgical suite
immediately following the evaluation or treatment of a patient
in a hospital emergency department, no physician or health care
provider shall be held liable unless it is proven by clear and
convincing evidence that the physician or health care provider's
actions showed gross negligence.
(d) In an action involving a health liability claim arising
out of the provision of emergency medical care in a hospital
emergency department or obstetrical unit or in a surgical suite
immediately following the evaluation or treatment of a patient
in a hospital emergency department, the court shall instruct
the jury to consider, together with all other relevant matters:
(1) Whether the person providing care did or did not have
the patient´s medical history or was able or
unable to obtain a full medical history, including
the knowledge of preexisting medical conditions,
allergies, and medications;
(2) The presence or lack of a preexisting physician-patient
relationship or health care provider-patient relationship;
(3) The circumstances constituting the emergency; and
(4) The circumstances surrounding the delivery of the
emergency medical care.
SECTION 11.
Title 51 of the Official Code of Georgia Annotated, relating
to torts, is amended by adding immediately following Code Section
5l-2-5, a new Code Section 51-2-5.1 to read as follows:
51-2-5.1.
(a) As used in this Code section, the term:
(1) 'Health care professional' means a professional licensed
as an audiologist, chiropractor, clinical social worker, dentist,
dietitian, medical doctor, marriage and family therapist, registered
professional or licensed practical nurse, occupational therapist,
optometrist, osteopathic physician, pharmacist, physical therapist,
physician's assistant, professional counselor, podiatrist, psychologist,
radiological technician, respiratory therapist, or speech-language
pathologist.
(2) 'Hospital' means a facility that has a valid permit or provisional
permit issued by the Department of Human Resources under Chapter
7 of Title 31.
(b) Notwithstanding the provisions of Code Section 51-2-5, no
hospital which complies with the notice provisions of either
subsection (c) or subsection (d) of this Code section shall be
liable in a tort action for the acts or omissions of a health
care professional unless there exists an actual agency or employment
relationship between the hospital and the health care professional.
(c) The hospital shall post a notice in the form and manner
described herein. Such notice shall:
(1) Be posted conspicuously in the hospital lobby or a public
area of the hospital;
(2) Contain print at least one inch high; and
(3) Provide language substantially similar to the following:
'Some or all of the health care professionals performing services
in this hospital are independent contractors and are not hospital
agents or employees. Independent contractors are responsible
for their own actions and the hospital shall not be liable for
the acts or omissions of any such independent contractors.'
(d) The hospital shall have the patient or the patient´s
personal representative sign a written acknowledgment
that contains language substantially similar to that
set forth in paragraph (3) of subsection (c) of this
Code section.
(e) The notice required in this Code section shall be
sufficient if it meets the requirements of either subsection
(c) or subsection (d) of this Code section even if the
patient or the patient´s
personal representative did not see or read such
notice for any reason, including but not limited to medical
condition or language proficiency.
(f) Whether a health care professional is an actual agent,
an employee, or an independent contractor shall be
determined by the language of the contract between the
health care professional and the hospital. In the absence
of such a contract, or if the contract is unclear or
ambiguous, a health care professional shall only be considered
the hospital´s
employee or actual agent if it can be shown by a preponderance
of the evidence that the hospital reserves the right
to control the time, manner, or method in which the health
care professional performs the services for which licensed,
as distinguished from the right to merely require certain
definite results.
(g) If the court finds that there is no contract or that the
contract is unclear or ambiguous as to the relationship between
the hospital and health care professional, the court shall apply
the following:
(1) Factors that may be considered as evidence the hospital
exercises a right of control over the time, manner, or method
of the health care professional's services include: the parties
believed they were creating an actual agency or employment relationship;
the health care professional receives substantially all the employee
benefits received by actual employees of the hospital; the hospital
directs the details of the health care professional's work step-by-step;
the health care professional's services are terminable at the
will of the hospital without cause and without notice; the hospital
withholds, or is required to withhold, federal and state taxes
from the remuneration paid to the health care professional for
services to the patients of the hospital; and factors not specifically
excluded in paragraph (2) of this subsection; and
(2) Factors that shall not be considered as evidence a
hospital exercises a right of control over the time, manner,
or method of the health care professional's services include:
a requirement by the hospital that such health care professional
treat all patients or that any health care professional
or group is obligated to staff a hospital department continuously
or from time to time; the hospital´s payment to the
health care professional on an hourly basis; the provision
of facilities or equipment by the hospital; the fact a
health care professional does not maintain a separate practice
outside the hospital; the source of the payment for the
professional liability insurance premium for that health
care professional; the fact that the professional fees
for services are billed by the hospital; or any requirement
by the hospital that such health care professional engage
in conduct required to satisfy any state or federal statute
or regulation, any standard of care, any standard or guideline
set by an association of hospitals or health care professionals,
or any accreditation standard adopted by a national accreditation
organization.
SECTION 12.
Title 51 of the Official Code of Georgia Annotated, relating
to torts, is amended by striking Code Section 51-12-31, relating
to recovery against joint trespassers, and Code Section 51-12-33,
relating to apportionment of damages, and inserting in their
respective places new Code sections to read as follows:
51-12-31.
Except as provided in Code Section 51-12-33, where an
action is brought jointly against several persons, the
plaintiff may recover damages for an injury caused by
any of the defendants against only the defendant or defendants
liable for the injury. In its verdict, the jury may specify
the particular damages to be recovered of each defendant.
Judgment in such a case must be entered severally.
51-12-33.
(a) Where an action is brought against one or more persons for
injury to person or property and the plaintiff is to some degree
responsible for the injury or damages claimed, the trier of fact,
in its determination of the total amount of damages to be awarded,
if any, shall determine the percentage of fault of the plaintiff
and the judge shall reduce the amount of damages otherwise awarded
to the plaintiff in proportion to his or her percentage of fault.
(b) Where an action is brought against more than one person
for injury to person or property, the trier of fact, in its determination
of the total amount of damages to be awarded, if any, shall after
a reduction of damages pursuant to subsection (a) of this Code
section, if any, apportion its award of damages among the persons
who are liable according to the percentage of fault of each person.
Damages apportioned by the trier of fact as provided in this
Code section shall be the liability of each person against whom
they are awarded, shall not be a joint liability among the persons
liable, and shall not be subject to any right of contribution.
(c) In assessing percentages of fault, the trier of fact shall
consider the fault of all persons or entities who contributed
to the alleged injury or damages, regardless of whether the person
or entity was, or could have been, named as a party to the suit.
(d)(1) Negligence or fault of a nonparty shall be considered
if the plaintiff entered into a settlement agreement with the
nonparty or if a defending party gives notice not later than
120 days prior to the date of trial that a nonparty was wholly
or partially at fault.
(2) The notice shall be given by filing a pleading in the action
designating the nonparty and setting forth the nonparty's name
and last known address, or the best identification of the nonparty
which is possible under the circumstances, together with a brief
statement of the basis for believing the nonparty to be at fault.
(e) Nothing in this Code section shall eliminate or diminish
any defenses or immunities which currently exist, except as expressly
stated in this Code section.
(f)(1) Assessments of percentages of fault of nonparties shall
be used only in the determination of the percentage of fault
of named parties.
(2) Where fault is assessed against nonparties pursuant to this
Code section, findings of fault shall not subject any nonparty
to liability in any action or be introduced as evidence of liability
in any action.
(g) Notwithstanding the provisions of this Code section
and any other provisions of law which might be construed
to the contrary, the plaintiff shall not be entitled
to receive any damages if the plaintiff is 50 percent
or more responsible for the injury or damages claimed.
SECTION 13.
Title 51 of the Official Code of Georgia Annotated, relating
to torts, is amended by adding a new Chapter 13 to read as follows:
CHAPTER 13
51-13-1.
(a) As used in this Code section, the term:
(1) 'Claimant' means a person, including a decedent's estate,
who seeks or has sought recovery of damages in a medical malpractice
action. All persons claiming to have sustained damages as the
result of the bodily injury or death of a single person are considered
a single claimant.
(2) 'Health care provider' means any person licensed under Chapter
9, 10A, 11, 11A, 26, 28, 30, 33, 34, 35, 39, or 44 of Title 43.
The term shall also include any corporation, professional corporation,
partnership, limited liability company, limited liability partnership,
authority, or other entity comprised of such health care providers.
(3) 'Medical facility' means any institution or medical facility
licensed under Chapter 7 of Title 31 or any combination thereof
under common ownership, operation, or control.
(4) 'Noneconomic damages' means damages for physical and emotional
pain, discomfort, anxiety, hardship, distress, suffering, inconvenience,
physical impairment, mental anguish, disfigurement, loss of enjoyment
of life, loss of society and companionship, loss of consortium,
injury to reputation, and all other nonpecuniary losses of any
kind or nature. This term does not include past or future:
(A) Medical expenses, including rehabilitation and therapy;
(B) Wages or earnings capacity;
(C) Income;
(D) Funeral and burial expenses;
(E) The value of services performed by the injured in the absence
of the injury or death including those domestic and other necessary
services performed without compensation; or
(F) Other monetary expenses.
(b) In any verdict returned or judgment entered in a medical
malpractice action, including an action for wrongful death, against
one or more health care providers, the total amount recoverable
by a claimant for noneconomic damages in such action shall be
limited to an amount not to exceed $350,000.00, regardless of
the number of defendant health care providers against whom the
claim is asserted or the number of separate causes of action
on which the claim is based.
(c) In any verdict returned or judgment entered in a medical
malpractice action, including an action for wrongful death, against
a single medical facility, inclusive of all persons and entities
for which vicarious liability theories may apply, the total amount
recoverable by a claimant for noneconomic damages in such action
shall be limited to an amount not to exceed $350,000.00, regardless
of the number of separate causes of action on which the claim
is based.
(d) In any verdict returned or judgment entered in a medical
malpractice action, including an action for wrongful death, against
more than one medical facility, inclusive of all persons and
entities for which vicarious liability theories may apply, the
total amount recoverable by a claimant for noneconomic damages
in such action shall be limited to an amount not to exceed $350,000.00
from any single medical facility and $700,000.00 from all medical
facilities, regardless of the number of defendant medical facilities
against whom the claim is asserted or the number of separate
causes of action on which the claim is based.
(e) In applying subsections (b), (c), and (d) of this Code section,
the aggregate amount of noneconomic damages recoverable under
such subsections shall in no event exceed $1,050,000.00.
(f) In any medical malpractice action, if an award of
future damages equaling or exceeding $350,000.00 is made
against any party in the action, the trial court shall,
upon the request of any party, issue an order providing
that such damages be paid by periodic payments. Such
periodic payments shall be funded through an annuity policy
with the premium for such annuity equal to the amount of
the award for future damages.
SECTION 14.
In the event any section, subsection, sentence, clause, or phrase
of this Act shall be declared or adjudged invalid or unconstitutional,
such adjudication shall in no manner affect the other sections,
subsections, sentences, clauses, or phrases of this Act, which
shall remain of full force and effect as if the section, subsection,
sentence, clause, or phrase so declared or adjudged invalid or
unconstitutional were not originally a part hereof. The General
Assembly declares that it would have passed the remaining parts
of this Act if it had known that such part or parts hereof would
be declared or adjudged invalid or unconstitutional.
SECTION 15.
(a) This Act shall become effective upon its approval by the
Governor or upon its becoming law without such approval.
(b) Code Sections 51-12-31 and 51-12-33, as amended by this
Act, and Code Sections 51-1-29.5, 51-2-5.1, and 51-13-1, as enacted
by this Act, shall apply only with respect to causes of action
arising on or after the effective date of this Act, and any prior
causes of action shall continue to be governed by prior law.
It is the intention of the General Assembly that all other provisions
of this Act shall apply to causes of action pending on its effective
date, unless such application would be unconstitutional.
SECTION 16.
All laws and parts of laws in conflict with this Act are repealed.
