MEDICAL MALPRACTICE
June 25, 2006
Dear
Constituent:
Thank
you for contacting me regarding medical malpractice issues. I wrote
most of the following letter about two years ago. I have modified it
here to take into account recent federal and Georgia developments.
Access to health care,
particularly in rural areas, is a major focus for me. It was the
subject matter of my first address on the House floor. And increasing
Medicare reimbursement levels was the subject matter of the first piece
of legislation I co-authored and submitted. For this and other reasons,
I am quite concerned about the cost of malpractice insurance premiums
for medical practitioners and hospitals in Georgia, particularly those
in certain practice specialties. And I feel strongly that good doctors
should not live in constant fear of a malpractice verdict that might
take their entire life savings. Even the most skillful and careful
practitioner is not perfect. And if there were a perfect practitioner,
he or she would still have bad results. Such an inherent risk of the
profession should not be permitted to threaten a professional's
livelihood and life savings.
Even so, I think states
should address this problem, not the federal government, just as I
believe the federal government should defer to state's rights on many
other issues.
There is a tremendous
difference in malpractice premiums from state-to-state. No doubt there
is also a difference in the percentage of physicians who say the
malpractice problem is causing them to consider leaving their practice
specialty, retiring or leaving the state to practice in another.
According to a January 2003 report from The Georgia Board for Physician
Workforce, two percent of the respondents in a Fall 2002 Georgia
physician survey fit this category.1
Besides significant
differences from state to state in the cost of medical malpractice
liability insurance and the consequent impact on access to health care,
there are also tremendous differences in legal rules governing
malpractice claims, such as rules governing pleading requirements,
permissible evidence, expert qualifications, permissible damages,
required proof, restraints upon frivolous litigation and many other
aspects of these claims.
But with all these
differences from state to state, at least one thing has been constant
since the founding of our country. In much the same way that we
regulate the practice of medicine on a state-by-state basis, rather than
from the federal government, the laws governing malpractice claims and
procedures have fallen exclusively within the province of the states,
not the federal government. The federal government should not be
regulating Georgia's tort law and court procedures unless there is an
overwhelming federal interest. And I just don't see that overwhelming
federal justification in this case any more than I would support federal
regulation of the practice of medicine. For example, I do not support a
federal rule or law that would allow direct access to Medicare patients
by physical therapists. Absent some truly extraordinary reason for
national uniformity, licensing requirements for patient care is a matter
for states to regulate.
Our Constitution generally
leaves both the regulation of medicine and the redress of civil wrongs
to the states. And the Constitutional framework here is wise because
state governments are better situated to offer balanced solutions that
fit the challenges and needs presented in each particular state. States
can also be the breeder and incubator of many different solutions which,
when tested in actual practice in a particular state, can then be
adopted by or adapted to other states. Leaving this problem to the
states will lead to better solutions than any federal legislation. In
addition, the solutions proposed today are more likely to be modified
and fine-tuned by state governments, as opposed to the massive and
unwieldy federal government, as circumstances change and new information
surfaces over time.
In an attempt to control
the cost of malpractice premiums, some states have imposed caps on
permissible damages while others have rejected them. Some have altered
regulations on insurance companies. Some, like California, have done
both, spawning debate as to which, if either, has been effective. Some
states have directly and aggressively tackled frivolous lawsuits or
significantly tightened the qualifications that must be shown by expert
witnesses, both of which are good ideas in my opinion. Some states
impose a cap but permit a jury to go above the cap when it finds gross
negligence.
As you know, the Georgia
State Assembly recently passed Senate Bill 3, which caps jury awards for
pain and suffering in medical malpractice cases at $350,000, or up to
$1.05 million in some multi-defendant cases.
These are the thoughts
that guided me in three times considering the Health Efficiency,
Accessible, Low-Cost, Timely Healthcare (HEALTH) Act (of 2003, 2004 and
2005). The House approved all three bills. I voted no all three times
because I believe, as I have explained, that Georgia should make this
call, not the federal government. My opinion is now reinforced by the
fact that Georgia has passed its legislation, and I am likely to
continue to defer to the Georgia State Assembly on this issue.
Please let me know if I can be of help in any other way.
Very truly yours,
Jim
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