COMMENTARY

How Expert Witness Rules May Harm Defendant Doctors; and More

Wayne J. Guglielmo, MA

Disclosures

June 10, 2013

In This Article

'Our Malpractice Cap Is Too Low,' Californians Complain

For tort reform advocates, the Medical Injury Compensation Act (MICRA) has long been the gold standard in their nationwide effort to rein in what they view as a broken and costly medical liability system.

Enacted in California in 1975, MICRA imposes a $250,000 cap on noneconomic damages in medical malpractice cases. Now a movement is under way in the Golden State to place an initiative on the November 2014 ballot that would both repeal the damages cap and overhaul the Medical Board of California, according to a story on the Website of the Sacramento Business Journal.[5]

The measure is being drafted by Consumer Watchdog, a California-based consumer education and advocacy organization, and the Troy and Alana Pack Foundation, a nonprofit organization focused on traffic safety. (The organization was started after the founders lost their young children in an automobile accident in which the other driver, a drug abuser, had obtained narcotics by physician prescription.)

Proponents of the ballot initiative complain that the MICRA cap hasn't been adjusted for inflation over the years, causing plaintiff attorneys reluctant to put in a lot of work for a low payout to turn their backs on otherwise legitimate medical liability cases.

Given the track record of lawmakers who, in the past, have tried repealing the cap, ballot sponsors face an uphill fight. Still, they're busy deciding what reforms to include in the initiative. Among the proposals are to repeal the MICRA cap and let trial juries determine damage awards; create a public-member majority on the state medical board; and fund an online data system to track prescriptions for controlled substances.

Stay tuned.

Dislike of Obamacare Spurs Doctor-Lawyer Truce in Georgia

There's a truce in place in Georgia between the state's doctors and trial bar, although the degree and duration of the alliance may be less than meets the eye, as a posting on Bloomberg Businessweek makes clear.[6]

The truce of sorts involves the Affordable Care Act (ACA), the federal healthcare reform law passed in 2010. Among other things, the ACA puts in place federal standards for doctors' fees and reimbursement. Failure to follow the new standards can land physicians in legal hot water, but as of May 6, 2013, this was no longer the case in Georgia.

On that date, Republican Governor Nathan Deal signed a bill into law that essentially shields doctors from being sued for malpractice based on their failure to comply with ACA pay and reimbursement standards.

Not only the state's doctors but also its plaintiff's lawyers supported the law. William Clark, Director of Political Affairs at the Georgia Trial Lawyers Association, was quoted by Businessweek as saying, "[We were happy to help] physicians enact a bill that will prevent someone from suing a doctor for failure to comply with a payment guideline, something that has nothing to do with the real question of whether the doctor failed to comply with the medical standard of care."

But, Clark quickly added, the law is in no way a "safe harbor" for physicians who fail to meet this latter standard. In Georgia, as elsewhere in the nation, litigation over strictly medical malpractice clearly isn't going away.

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