Opponents Offer Testimony Against Malpractice Bill

, Daily Report


Opponents of a bill to scrap the state's medical malpractice tort system and replace it with a worker's compensation-like board have found their own Emory law professor to argue their side. In an earlier committee meeting, an Emory prof testified in favor of Senate Bill 141, called the Patient Injury Act.

On Wednesday, the Georgia Trial Lawyers Association presented professor Frank Vandall, who teaches classes on torts and products liability, to a subpanel of the Senate Health and Human Services Committee that is vetting the legislation.

Vandall argued that the bill would violate the constitutional right to trial by jury and fly in the face of the 2010 unanimous state Supreme Court decision in Atlanta Oculoplastic Surgery v. Nestlehutt, 286 Ga. 731, which overturned the Legislature's 2005 caps on non-economic damages. His statements refuted previous testimony by Emory assistant law professor Alexander "Sasha" Volokh, who said the bill would not violate the Constitution because it would create a new proceeding without jurors, similar to worker's compensation.

"The new statutory scheme is not an imposition on the jury trial right because there is no jury you are nullifying," Volokh said in October.

Vandall disagreed. "Worker's compensation is not a fair analogy because there is no quid pro quo," he said. "With worker's compensation, the worker has a clear idea of the risks that he or she may face [in the workplace], but medical patients have a very slight understanding of the kinds of risks they face."

Vandall argued that the system proposed by SB 141 would be unpredictable in terms of the number of claims that medical providers would see and their cost, and biased because it would allow physicians, nurses and hospitals to essentially police their own.

The bill has built into a legal tempest—pairing trial lawyers and doctors as allies—though it remains in its teapot until the start of the session on Jan. 13.

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