Summary of SB 3 As Passed

SECTION 1

Preamble. The alleged need for legislation altering the civil justice system.

SECTION 2

Vanishing Venue . This section: (i) gives a nonresident defendant the right to require a case be transferred when all the resident defendants are discharged from liability and authorizes the plaintiff to elect from among the counties where venue would be proper; (ii) in an action involving medical malpractice claims, allows a nonresident defendant to require that the case be transferred to the county of his/her residence if the act occurred in the county of the defendant's residence; and, (iii) authorizes the court to transfer a claim to another state or county if it determines another forum would be more convenient for the parties.

SECTION 3

Affidavits. This section eliminates the automatic 45-day extension for filing an expert affidavit when the complaint is filed within 10 days of the expiration of the statue of limitations. This section also extends the timeframe in which the defendant may file a motion to dismiss the complaint based on a defective affidavit. Currently, this motion must be filed contemporaneously with the first responsive pleading. This section gives the defendant until the close of discovery to file such a motion.

SECTION 4

Medical Authorization Form . This section requires the plaintiff to file a "medical authorization form" together with the complaint. This section will inevitably result in litigation over whether it authorizes defense counsel: (i) to obtain and disclose the protected health information of the plaintiff or the plaintiff's decedent; and (ii) to discuss the care and treatment of the plaintiff or the plaintiff's decedent with all of the plaintiff's or decedent's treating physicians. This section also may be in violation of the federal HIPAA law and there is likely to be litigation over this point, as well. The section appears to require the authorization to provide for the release of all protected health information except for privileged information.

SECTION 5

Offer of Settlement. Supposedly, the intent of this section was to provide that in the event a party makes a monetary settlement offer, if the offeree does not do 25% better at verdict time, then the offeree must pay the offeror's litigation costs, including attorney's fees, from the date of the offer. However, the section is internally inconsistent and, at one point says that if the monetary offer was not 25% better than the verdict, then the offeree would have to pay the offeror's litigation costs. These two provisions within this section appear to be irreconcilable.

SECTION 6

Statements of Apology and Benevolence . This section prohibits conduct or statements that constitute offers of benevolence, regret, mistake, error, sympathy, or apology from being admitted into evidence as an admission of liability. It ostensibly is intended to encourage health care providers to communicate openly with patients and their families when adverse outcomes occur.

SECTION 7

Daubert Standard. This section combines Georgia 's current expert witness law with certain aspects of the Federal Rules of Evidence. It also permits Georgia courts to consider Daubert and other federal court decisions in deciding the admissibility of expert testimony.

Expert Qualifications. This section also establishes qualification requirements for experts in medical malpractice cases by requiring such experts to have either practiced or taught in the area of practice or specialty at issue for three of the five years preceding the alleged negligence. The judge is required to determine whether the proffered expert has practiced or taught with sufficient frequency to establish an appropriate level of knowledge regarding how to perform the procedure, diagnose the condition, or render the treatment at issue in the case at hand. These requirements apply both to experts at trial and to experts testifying by means of a pre-trial affidavit.

 

SECTION 8

Insurer Reports to the Medical Board . This section requires medical malpractice insurers to report all judgments and settlements against physicians to the Composite State Board of Medical Examiners. Previously, Georgia law required such reports only for judgments and settlements in excess of $10,000.

 

SECTION 9

Physician Reports to the Medical Board and Investigations by the Board .

This section requires the Medical Board to assess a physician's fitness to practice medicine if the Board has disciplined the physician three times in the last 10 years as a result of medical malpractice. The Medical Board is authorized to take any action necessary to reduce errors and promote patient safety, including revoking the physician's license.

 

SECTION 10

Limitation of Liability for Emergency Services Providers. This section provides that physicians and health care providers will be completely immune from any claim arising out of emergency care in a hospital emergency department, or care in an obstetrical unit or surgical suite following any examination or treatment in an emergency department, unless it is proven by clear and convincing evidence that the provider's action constituted gross negligence. In addition, this section requires a court in any claim arising out of emergency medical treatment to charge the jury regarding the special circumstances surrounding the delivery of emergency care.

 

SECTION 11

Actual and Apparent Agency. This section significantly limits when a hospital can be held vicariously liable for the negligence of a non-employee physician or other health care professional, based on actual or apparent agency. It provides that a contract between a healthcare professional and a hospital will control whether the professional is the hospital's agent or an independent contractor. In the absence of such a contract, or where the contract is ambiguous, it sets forth specific factors that may be considered as evidence of the hospital's right to control the healthcare professional and his or her services and which factors may not be considered as evidence of such control. In addition, this section provides that a hospital may expressly notify patients that a healthcare professional is an independent contractor by either (i) posting a sign containing statutorily required language; or (ii) obtaining a written acknowledgment from the patient or the patient's personal representative containing such language.

 

SECTION 12

Elimination of Joint and Several Liability . This section eliminates joint and several liability and requires the finder of fact to allocate the fault among the alleged culpable parties, including settling parties and even non-parties.

 

SECTION 13

Caps on Non-Economic Damages. This section caps non-economic damages in medical malpractice cases at $350,000 per claim against a physician or physicians, allows up to another $350,000 per hospital or other medical facility up to $700,00,000 from all medical facilities. In theory, this would amount to an aggregate cap of $1,050,000, but only if a plaintiff could obtain a verdict against a physician and 2 medical hospitals or facilities. This section also provides for periodic payments of future damages (economic or non-economic) in excess of $350,000, said payments to be funded by an annuity purchased for a premium equaling the amount of the future damages award.

 

SECTION 14

Severability Clause . This section provides that if one or more sections of the bill are ruled unconstitutional, than it will not void all other provisions of the bill.

 

SECTION 15

Effective Date. The emergency room, elimination of joint and several liability, and caps on damages sections were made applicable only to actions arising on or after the signature of the Governor (02/16/05). All other provisions were made applicable to all pending cases as of the Governor's signature (02/16/05).