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M. Brandon Smith
M. Brandon Smith
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Screening Panels Are Not The Answer For Medical Malpractice Reform In Georgia

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In a guest column in the Atlanta Journal Constitution on January 8, 2010, a medical services company’s CEO provides what many may assume is a novel and “middle ground” solution to the costs associated with medical malpractice in Georgia. Citing the example of Betty Nestlehutt, who was injured and permanently scarred as a result of a face-lift procedure, the CEO suggests that before an injured Georgia patient can bring her case before a jury, she should first have to convince a panel of medical professionals that her case has merit. Certainly the argument for screening malpractice cases is reasonable and even sound, but the problem with his proposal is that this pre-lawsuit screening system is already in place in Georgia.

Betty Nestlehutt’s claim was pre-screened by numerous doctors, all of whom agreed that her doctor did not meet the minimum standard of care that she should have received. An affidavit giving specific details on the nature of her doctor’s malpractice was filed by a Georgia doctor who practiced the same type of medicine as the doctor who injured her. Despite these medical opinions validating her case, her doctor’s insurance company refused to resolve her case.

Contrary to tort reform folklore, the surgeon who testified on her behalf at trial was not some ‘hired gun’ who had never met Mrs. Nestlehutt. Rather, he was the Chief of Facial Plastic and Reconstructive Surgery at Emory University. His credibility stemmed not only from his extensive experience and training, but also because he had provided treatment to her following her injuries and knew her medical history down to the detail. He stood before the jury coming from a place of knowledge, principle, and fidelity to the high standards of the medical profession.

The same was not the case with the defendant’s insurance company. Testifying on their behalf were numerous hired witnesses who had never examined Mrs. Nestlehutt, yet were somehow able to testify that her doctor did nothing wrong. This is hardly the scenario that most Georgians would see fit to judge the merits of their personal injury.

As illustrated through Mrs. Nestlehutt’s case, the systematic screening of medical malpractice cases is already the law in Georgia. Malpractice cases filed in Georgia must be extensively reviewed by qualified medical professionals who must complete affidavits under oath detailing the specific acts of malpractice before the cases can even be filed. Moreover, these practitioners must work in the same field as the defendant doctor. In examining in Mrs. Nestlehutt’s case, the reviewing doctor on her behalf performed the same kind of plastic surgery that resulted in her injuries.

The state of Maine, which employs the legal processes endorsed by this tort reform columnist in the Atlanta Journal Constitution, is experiencing its own share of challenges. The Chief Justice of the Maine Supreme Court has gone on record saying that her state’s use of medical screening panels is “a cumbersome process with unpredictable results that cost both the plaintiffs and defendants money and time.” In her observation, not only does the system significantly delay justice, but perhaps more alarmingly it removes incentive for defendants’ insurance companies to reach fair settlements out of court.

So, what would “reform” of this nature mean for Georgia? It would mean that individuals who were legitimately harmed through medical malpractice would likely be significantly delayed at best, and at worst, totally prevented from seeking compensation for their injuries. For those trying to profit from frivolous lawsuits there would be no change – the majority would still be eliminated through the review process and expert affidavit requirement. The bottom line is that medical malpractice law is a difficult and complex issue which attempts to strike a balance between patients’ rights and the burdens on the medical profession. The solutions are not easy or clear cut, yet Georgia’s system of providing clear and informed safeguards against frivolous lawsuits while retaining access to a fair trial to injured persons is sound and just. One of the pillars of the justice system is to ensure that individuals retain their legal rights to a jury of their peers, not a panel of biased bureaucrats.

Others have voiced their opinons on this issue as well. Take a few moments to review the more informed response from the Georgia Trial Lawyers Association and fellow blogger Mark Zamora, who, like us, knows their opinions are the TRUTH.