Torts and Civil Practice Civil Practice and Procedure Generally: Change Provisions Relating to Venue in Actions With Joint Defendants; Provide That Courts of This State May Under Certain Circumstances Decline to Decide Cases Under the Doctrine of Forum Non Conveniens; Change Provisions Relating to Affidavits Accompanying Charges of Professional Malpractice; Provide for Defendants' Access to Plaintiffs' Health Information in Medical Malpractice Cases; Provide for Offers of Judgment and the Effect Thereof; Provide New Procedures for Damages for Frivolous Claims and Defenses. Torts General Provisions: Change Provisions Relating to the Establishment of Liability and Standard of Care in Certain Actions Relating to Emergency Health Care; Change Provisions Relating to Agency Liability of Hospitals; Change Provisions Relating to Apportionment of Award According to Degree of Fault; Create Provisions Related to Apportioning Damages in Certain Malpractice Actions; Limit Noneconomic Damages in Certain Actions Relating to

• Publication year: 2010

Georgia State University Law Review

Volume 22 . Issue 1 Fall 2005 ²³

3-21-2012

TORTS AND CIVIL PRACTICE Civil Practice and Procedure Generally: Change Provisions Relating to Venue in Actions with Joint Defendants; Provide That Courts of This State May Under Certain Circumstances Decline to Decide Cases Under the Doctrine of Forum Non Conveniens; Change Provisions Relating to Affidavits Accompanying Charges of Professional Malpractice; Provide for Defendants' Access to Plaintiffs' Health Information in Medical Malpractice Cases; Provide for Offers ofJudgment and the Effect Thereof; Provide New Procedures for Damages for Frivolous Claims and Defenses.

Recommended Citation

Georgia State University Law Review (2005) "TORTS AND CIVIL PRACTICE Civil Practice and Procedure Generally: Change Provisions Relating to Venue in Actions with Joint Defendants; Provide That Courts of This State May Under Certain Circumstances Decline to Decide Cases Under the Doctrine of Forum Non Conveniens; Change Provisions Relating to Affidavits Accompanying Charges of Professional Malpractice; Provide for Defendants' Access to Plaintiffs' Health Information in Medical Malpractice Cases; Provide for Offers ofJudgment and the Effect Thereof; Provide New Procedures for Damages for Frivolous Claims and Defenses. Torts General Provisions: Change Provisions Relating to the Establishment of Liability and Standard of Care in Certain Actions Relating to Emergency Health Care; Change Provisions Relating to Agency Liability of Hospitals; Change Provisions Relating to Apportionment of Award According to Degree of Fault; Create Provisions Related to Apportioning Damages in Certain Malpractice Actions; Limit Noneconomic Damages in Certain Actions Relating to Health Care; Provide for Payment Over Time of Certain Future Damages in Certain Actions; and for Other Purposes," Georgia State University Law Review: Vol. 22: Iss. 1, Article 23. Available at: http://digitalarchive.gsu.edu/gsulr/vol22/iss1/23

Torts General Provisions: Change Provisions Relating to the Establishment ofLiability and Standard ofCare in Certain Actions Relating to Emergency Health Care; Change Provisions Relating to Agency Liability of Hospitals; Change Provisions Relating to Apportionment ofAward According to Degree of Fault; Create Provisions Related to Apportioning Damages in Certain Malpractice Actions; Limit Noneconomic Damages in Certain Actions Relating to Health Care; Provide for Payment Over Time of Certain Future Damages in Certain Actions; and for Other Purposes

Georgia State University Law Review

Follow this and additional works at: http://digitalarchive.gsu.edu/gsulr Part of the Law Commons

TORTS AND CIVIL PRACTICE

Civil Practice and Procedure Generally: Change Provisions Relating to Venue in Actions with Joint Defendants; Provide That Courts of This State May Under Certain Circumstances Decline to

Decide Cases Under the Doctrine of Forum Non Conveniens; Change Provisions Relating to Affidavits Accompanying Charges of Professional Malpractice; Provide for Defendants' Access to Plaintiffs' Health Information in Medical Malpractice Cases; Provide for Offers of Judgment and the Effect Thereof; Provide New Procedures for Damages for Frivolous Claims and Defenses.

Torts General Provisions: Change Provisions Relating to the Establishment of Liability and Standard of Care in Certain Actions Relating to Emergency Health Care; Change Provisions Relating to Agency Liability of Hospitals; Change Provisions Relating to Apportionment of Award According to Degree of Fault; Create

Provisions Related to Apportioning Damages in Certain Malpractice Actions; Limit Noneconomic Damages in Certain Actions Relating to Health Care; Provide for Payment Over Time of Certain Future Damages in Certain Actions; and for Other

Purposes

Code Sections: O.C.G.A. §§ 9-10-31 (amended), 9-10-

31.1 (new), 9-11-9.1 (amended), 9-119.2 (new), 9-11-68 (amended), 24-337.1 (new), 24-9-67 (amended), 24-967.1 (new), 33-3-27 (amended), 43-3437 (amended), 51-1-29.5 (new), 51-25.1 (new), 51-12-31 (amended), 51-1233 (amended), 51-13-1 (new)

Bill Number: Act Number: Georgia Laws Summary:

The Act provides for civil justice reform in Georgia, amending Titles 9, 24, 33, 43, and 51 of the Official Code of Georgia Annotated. The Act addresses venue for cases involving

SB 3 1

2005 Ga. Laws 1

221

Press, 2005

222 GEORGIA STATE UNIVERSITY LAW REVIEW [Vol. 22:221

joint defendants and the doctrine of forum non conveniens. It also amends procedures relating to affidavits in professional malpractice cases by requiring that the plaintiff file, with the complaint, an affidavit of an expert competent to testify. In addition, the Act also requires authorizing the release of the plaintiff's medical information in medical malpractice cases. The Act further provides guidelines associated with offers of settlement and the reduction of frivolous lawsuits. Moreover, the Act provides that courts shall not admit certain statements of apology or similar statements by health care providers as evidence in civil actions. It also changes the standards of expert testimony and expert witness qualification. The Act requires reporting instances of medical malpractice judgments and settlements and provides for investigations and remedial actions with respect to physicians' fitness to practice. Further, the Act addresses liability in the emergency room context and liability involving independent contractors. It also eliminates joint and several liability in favor of apportionment of damages according to degree of fault. The Act also provides a cap on noneconomic damages in certain actions relating to health care and allows for periodic payments over time. The Act concludes by providing for severability, designating, an effective

date, and repealing conflicting laws.

http://digitalarchive.gsu.edu/gsulr/vol22/iss1/23 2

Effective Date: February 16,2005

History

Tort reform is one of the most polarizing and controversial issues that society faces today.¹ Year after year, opposing sides set the battlefield and draw the lines.² States throughout the country have struggled with the issue.³ The controversy pits Republicans against Democrats, doctors against lawyers, and business advocates against consumer advocates.⁴

In Georgia, the issue divides not only along party lines but also within them.⁵ In 2004, as in previous years, the Georgia Legislature unsuccessfully attempted to pass tort reform.⁶ In 2004, the focus of HB 1028 was specifically on medical malpractice.⁷ It would have given rural hospitals the ability to self-insure, provided limited liability associated with independent contractors, and eliminated joint and several liability.⁸ The bill ultimately failed in Conference Committee over the issue of caps on noneconomic damages.⁹

The same players came to the table during the 2005 legislative session for consideration of SB 3.¹⁰ Lawmakers heard many views throughout the lengthy process—over 20 combined hours of testimony from both chambers.¹¹ Many claimed Georgia needed tort reform due to the ever increasing medical malpractice insurance

1. Sonji Jacobs, Panel Weighs Malpractice Issue; Tort Reform Would Cap Injury Awards, atlanta J. const., Jan. 25,2005, at Bl.

2. See id.

3. See Douglas Heller & Allison Wall, 'Cap' Cheats Patients and Doctors, Atlanta J. const., Feb. 3,2005,atA15.

4. See id.; Greg Bluestein, More Get in on the Tort Reform Act, fulton County Daily Rep., Jan. 26, 2005, at 26; Bill Rankin, LEGISLATURE '05: THE BIG ISSUES: Malpractice Fight Renewed; As Republicans Take Over House, Doctors, Lawyers Prepare to Slug it Out Again Over Jury Awards and Medical Liability, atlanta J. const., Jan. 2,2005, at CI.

5. Rankin, supra note 4.

6. Id.

7. Review of Selected 2004 Georgia Legislation, 21 Ga. St. U. L. Rev. 178,182-94 (2004).

8. Id.

9. Id.

10. Bluestein, supra note 4; Greg Bluestein, Bar Won't Budge on Tort Reform, fulton county daily Rep., Jan. 19,2005, at 19; Rankin, supra note 4.

11. See Audio Recording of Senate Proceedings, Feb. 1, 2005, http://www.georgia.gov/00/article/0,2086,4802_6107103_33091490,00.html [hereinafter Senate Audio]; Audio Recording of House Proceedings, Feb. 10, 2005, http^/www.georgia.gov/00/article/0,2086,4802_6107103_33078458,00.htrnl [hereinafter House Audio]; Greg Bluestein, Damages Caps Divide House GOP, fulton County Daily Rep., Feb. 8, 2005, at 8.

224 GEORGIA STATE UNIVERSITY LAW REVIEW [Vol. 22:221

premiums resulting from large jury awards and settlements.¹² Specifically, the Medical Association of Georgia feared that without tort reform, they would not be able to attract and retain an adequate number of doctors to sustain the state's needs.¹³ Additionally, the Georgia Chamber of Commerce believed that "tort reform would translate into a better business climate" for the state.¹⁴ In particular, the National Federation of Independent Business felt that with civil justice reform, small businesses would be less of a target for trial lawyers.¹⁵

While many voiced the need for civil justice reform, opponents saw tort reform as coming at too great a cost.¹⁶ The opponents argued tort reform will restrict access to the courts and deny victims the right to compensation for their injuries.¹⁷ Further, they claimed tort reform will hinder wrongdoers' accountability for their acts.¹⁸ They also argued that while many other states have enacted tort reform legislation, the overwhelming majority have not seen a reduction in insurance premiums.¹⁹

Bill Tracking of SB 3

Consideration by the Senate

Senators Preston Smith, Eric Johnson, Mitch Seabaugh, Bill Stephens, and William Hamrick of the 52nd, 1st, 28th, 27th, and 30th

OCX

districts, respectively, sponsored SB 3. The Senate first read the bill on January 11, 2005, and the Senate Judiciary Committee favorably reported the bill, by substitute, on January 28, 2005.²¹

12. Jay Bookman, For Cruelty, Malpractice Cap Tops All, atlanta J. const., Feb. 14, 2005, at All.

13. Bluestein, supra ...