YOUR SAY: Don't give up on justice for ER victims

It's been 10 years since the Georgia General Assembly passed legislation that insurance company spin masters and corporate special interests convinced legislators and the press to call tort "reform." The package of measures, officially the Tort Reform Act but often called Senate Bill 3, among other things, made it near-impossible to hold a hospital emergency room or its staff accountable for negligence.

The linchpin of Georgia's ER statute is the "gross negligence" standard. Under the law, ERs and their staff can often be held liable only if an injured patient can show by "clear and convincing" evidence that the ER staff acted with "gross negligence." The law and the courts have provided clear guidance on what gross negligence means, defining it as the "failure to exercise even a slight degree of care" and "lack of the diligence that even careless men are accustomed to exercise."

That's a high bar to meet, and it gives ERs virtual immunity to lawsuits. Little wonder then that the Medical Association of Georgia, whose lobbyists have a long wish list for the 2016 session of the Georgia General Assembly, have only one goal in the area of tort reform: "preserve the existing elements of tort reform," according to the group's website.

While it's difficult to find data on ER case filings, I can say from personal experience that very few lawyers are willing to sue hospitals over ER injuries. That's true even when it seems clear that a patient has been a victim of substandard care. I have often had to tell grievously injured patients who came to my office that there was nothing I could do for them.

If the goal of the 2005 tort "reform" law was to discourage lawyers from helping victims of substandard emergency room care, it has been a resounding success. I can count on one hand the number of successful lawsuits against ERs in Georgia since the 2005 law went into effect.

The stated goal of the legislation was to reduce the continual increase in medical costs by alleviating the pressure for physicians to order unnecessary tests — sometimes called "defensive medicine" — and to cut medical malpractice insurance costs that medical lobbyists said were driving doctors into retirement. If we measure the legislation by those goals, it has been an abject failure.

Georgia, Texas and South Carolina all passed similar laws from 2003 to 2005 that protected ERs. Rand Corporation, a nonpartisan public policy research institution, looked at whether the laws reduced costs. The results were published last year in the New England Journal of Medicine, widely regarded as the preeminent medical journal in the U.S.

Here what Rand found:

As expected, the laws gave ER physicians broad protection from lawsuits.

The statutes did not decrease the practice of defensive medicine. Expensive imaging studies such as MRIs and CTs, and hospitalizations all continued unabated.

Only in Georgia was there a reduction in the average per-visit ER charge — just 3.6 percent.

Physicians work hard and deserve to be compensated well for their expertise and dedication, but no one who makes life and death decisions should receive a pass on the "failure to exercise even a slight degree of care." I don't expect this law to change in the coming session of the Legislature, but it's time to begin looking at restoring the balance that was lost in 2005.

ERs are stressful environments where seconds count, but the law as it existed prior to Senate Bill 3 already took that into account in imposing liability. The 2005 law eviscerated patient rights, and it's time to find a middle ground that allows our hardworking doctors and nurses to practice medicine while protecting patients from those who fail "to exercise even a slight degree of care."

Jarome Gautreaux is a partner at Gautreaux & Sizemore in Macon. He is the former president of the Middle Georgia Trial Lawyers Association and an adjunct professor at Mercer University Walter F. George School of Law. He may be reached at (478) 238-9758 or by email at jarome@gstriallawyers.com.

This story was originally published February 6, 2016 at 7:47 PM with the headline "YOUR SAY: Don't give up on justice for ER victims."