Senate Bill 3 includes a provision that health care institutions are not liable for negligence of independent contractors when a sign to that effect is posted in the lobby, etc. On the surface this appears to be merely a codification of existing Georgia law. It has long been the law that hospitals are not responsible for the negligence of non-employee doctors practicing in the hospital. However, nurses, technicians, etc., generally have been hospital employees, for whose negligence the hospital could be held liable. It remains to be seen whether hospitals and nursing homes will begin to lease all nurses and other support personnel through other companies, and thus escape virtually all liability.
Lawyers who are still brave enough to take on the risk of handling malpractice claims after Senate Bill 3 may need to explore the possibility that some unseen employee leasing company may be an appropriate defendant.

SB 3 provides, with regard to causes of action arising after 2/16/05, that, “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.”
As a practical matter, this amounts to virtual immunity from any civil accountability for all health care personnel in a hospital emergency room setting, and to a large degree for obstetricians who admit their patients through the emergency department.

SB 3, effective 2/16/05, requires reporting of all medical malpractice judgments and settlements, in any amount, to the Composite State Board of Medical Examiners. Whenever there is a judgment or settlement of at least $100,000, and whenever a physician has a third judgment or settlement in any amount, the board must investigate the doctor’s fitness to practice medicine.
Policing the medical profession to protect the public from bad doctors should be a good thing. It remains to be seen how this will be done in practice.
Previously, all judgments and settlements above $10,000 were reported to the Board and the National Practitioners’ Database. Since all physicians’ malpractice insurance policies require the policyholder’s consent to settlement, the reporting requirement has made settlement of malpractice cases for more than a nominal amount extremely difficult in all but the most egregious cases, multiplying the trouble and expense of litigation in even meritorious cases. The new reporting requirement will likely make settlements even more difficult.

Georgia’s tort reform bill (SB 3, effective in all pending cases effective 2/16/05) includes the adoption of Federal Rule of Evidence 702 regarding expert testimony, in civil cases only. Some have observed that “junk science” is now good enough to support capital punishment in Georgia, but not good enough to require an insurance company to part with cash.
There was virtually no discussion of this portion of SB 3 in either committees or on the floor of either house of the General Assembly. It appeared that hardly anyone in the legislature understood it well or gave it much thought. It was simply part of the tort reform package that the Chamber of Commerce lobbyists presented. Genuine debate, deliberation, discussion, amendments and calm reflection of consequences were not to be tolerated. When the chairman of the House Judiciary Committee proposed to break up the tort reform proposals into separate bills, to be considered each on their own merits, the bill was removed from the Judiciary Committee and placed in a special tort reform committee.
The statute expressly references the Daubert, Joiner and Kumho Tire cases in the U.S. Supreme Court, and directs that “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.”

SB 3, effective 2/16/05, includes a provision that in the event of an “unanticipated outcome resulting from medical care” a health care provider’s “statements, affirmations, gestures, activities or conduct expressing benevolence, regret, apology, sympathy, commiseration, condolence, compassion, mistake, error, or a general sense of benevolence” are not admissible in evidence. The word “fault” was deleted from that list in the Senate Judiciary Committee, and it remains to be seen how that omission might be construed in determining the finer points of legislative intent. See the full text of the section below.

SB 3, effective in all cases on 2/16/05, requires that the plaintiff in a medical malpractice case provide with the complaint a signed authorization for defense counsel to obtain all protected health information in medeical records, and to have ex parte discussions with all of the plaintiff’s (or plaintiff’s decedent’s) treating physicians.
This section may violate the federal HIPAA law, which preempts all conflicting state laws. It does not require a particular form of authorization document, does not require that the authorization be open-ended, and does not require that prior treating physicians comply with it. Therefore, it is likely that plaintiffs will formally comply with the statute by providing authorizations with short-term expiration dates, while pointing out that it is preempted by HIPAA, that physicians responding to it may be in violation of HIPAA, and that all sanctions under the federal HIPAA law may apply.

Since 1987, Georgia has required that in any professional malpractice case that the plaintiff file with the complaint an affidavit from a member of the same profession stating how the applicable standard of care was allegedly violated. If the complaint was filed within ten days prior to expiration of the statute of limitation there was a 45 day grace period for filing the affidavit, and the grace period could be extended by the court. SB 3 eliminates the grace period, allows the defendant to the close of discovery to file a motion to dismiss due to a defective malpractice affidavit, and allows the plaintiff 30 days after service of the motion to cure the defect. See text below.

The new Georgia tort reform legislation (SB 3) brings back the old rule of “vanishing venue” in which a case could go all the way through trial and then be sent back to the court of another county if no defendant residing in the forum county was held liable. The new law also adopts a rule of forum non conveniens. See the full text below.
In future posts we will explore the details, ambiguities, and possible consequences, intended or unintended.

In the spasm of tort reform (SB 3) that passed with scant discussion of details, Georgia has replaced the ancient rule of joint and several liability with a new rule of proportional liability. Applying to cases arising after Gov. Perdue signed it on 2/16/05, the new law (text below) provides that a jury is required to apportion fault not only among parties but also among non-parties, known and unknown, as to which a defendant gives notice. We anticipate many complications in litigation, all to the benefit of defendants and insurance companies and probably none benefiting innocent injury victims. Combined with the Daubert rule on expert testimony and offers of judgment, this represents a radical change in the nuts and bolts of tort law practice in Georgia.
In future posts we will explore some of the issues implicit in the new proportional liability rule, and some of the unintended (?) consequences. See the text below.