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Doctors, Trial Lawyers Back 'Provider Shield' Law in GA

 |  By John Commins  
   May 08, 2013

Physicians and attorneys—uncommon allies—support a Georgia law that creates a barrier between doctors and "ancillary" payer guidelines in the Patient Protection and Affordable Care Act which could potentially be used as evidence in medical malpractice lawsuits.

News that the Medical Association of Georgia and trial lawyers are united in their support of a new law that provides limited malpractice protections to physicians left some observers at the Capitol contemplating biblical prophecy.

"When their lobbyist and I testified together in support of this bill, one House member suggested that the committee should adjourn so that all of the members could get home before the locusts arrived," says William T. Clark, director of Political Affairs with the Georgia Trial Lawyers Association.

"He was joking, I think."

The "Provider Shield" bill (HB499) was signed into law on Monday by Georgia Gov. Nathan Deal. MAG and backers say it creates a barrier between Georgia doctors and "ancillary" payer guidelines in the Patient Protection and Affordable Care Act which potentially could be used as evidence in medical malpractice lawsuits.

MAG President W. Scott Bohlke, MD, said the new law will protect "physicians in the state from some unreasonable and unnecessary standards and legal liabilities."

"These guidelines, including factors like healthcare quality measures and payment adjustments and value-based payment modifiers, don't have any direct ties to the medical profession in Georgia," Bohlke said in prepared remarks. "These are simply cost management tools for the federal government and other third-party payers."

The shield law is being touted as the first in the nation and is based on model legislation crafted by the American Medical Association's Advocacy Resource Center.

AMA board member Patrice A. Harris, MD, said the law "makes it clear that federal standards or guidelines designed to enhance access to high-quality healthcare cannot be used to invent new legal actions against physicians."

"The decisive action of Georgia lawmakers holds the line against medical liability abuse and helps avert more civil actions against physicians, which increase medical liability insurance premiums and reduce access to health care for Georgia's patients," Harris said in prepared remarks.

Under the shield, evidence related to government and private payer guidelines won't be admissible in court, can't be used as the standard of care, and can't be used as a presumption of negligence in any malpractice lawsuit.

Clark says trial lawyers were "glad to partner" with physicians in support the bill because the protections it extends against malpractice suits are limited and should not affect patient safety.

"While we work steadfastly to shield patients from negligent medical care, especially given that 98,000 Americans die annually from preventable medical malpractice, we did not mind helping the physicians enact a bill that will prevent someone from suing a doctor for the doctor's failure to comply with a payment guideline, something that has nothing to do with the real question of whether the doctor failed to comply with the medical standard of care," Clark wrote in an email exchange with HealthLeaders Media.

Bohlke says the law will "ensure that Georgians have access to the highly trained physicians they need by creating a sustainable and more favorable practice environment."

Clark notes that it is "not a safe harbor for physicians who have failed to meet the appropriate standard of care when practicing medicine in Georgia."

"HB499 will not prevent a patient from suing to hold a doctor accountable if he or she fails to follow guidelines relating to the quality of care they are to provide or guidelines relating to best medical practices with which they are supposed to comply," he says.

"The only thing HB499 will do is to prevent a patient from suing a doctor because the doctor did not follow a federal payment guideline. No one in our Association is aware of there EVER being a medical malpractice case based on a doctor's failure to meet a payment guideline. So, restricting the ability to do that through this bill will not create any problems for any patient prosecuting a case of medical malpractice in Georgia."

To win the trial lawyers' support, Clark says Georgia lawmakers made the bill "go both ways so that it does not just shield doctors from having a patient assert that the doctor's failure to comply with a payment guideline was evidence of malpractice. The bill also shields a patient from having a doctor assert that his or her compliance with such a payment guideline is evidence that the doctor provided appropriate care to the patient."

"We took the position that what's good for the goose must also be good for the gander," Clark says. "And fortunately, the General Assembly agreed with us."

The shield law is not the only example of Peach State doctors and trial lawyers working together this year for the common good of Georgians. Clark notes their united effort to defeat SB141, which would have replaced medical malpractice jury trials with administrative hearings.

"It is an unworkable and unconstitutional alternative to jury trials that has failed miserably in some European countries where it has been tried," Clark says.

"And, it is based on a fallacious premise that says doctors spend 25% of their time performing unnecessary medical tests and medical procedures, something that is impossible in this day and time when managed care runs medicine and prevents doctors often from being able to perform even absolutely medically necessary tests and procedures, much less from being able to do unnecessary tests and procedures."

"Moreover, if you buy their premise, then you have to accept that that means doctors are committing insurance fraud, Medicaid fraud and Medicare fraud for billing for all those unnecessary tests and procedures. You and I both know that they are not doing that. And, that was a point we were able to agree on with our friends at the medical association. And, we agreed that the proposal was not going to bring down costs of malpractice insurance or costs of healthcare."

So, cooperation can occur between these two hostile camps. But before we break out the tie-dye shirts and sway together to Kumbaya, remember that trial lawyers and physicians will continue to eye one another with suspicion in state houses across the nation.

"We have worked together on another bill or two but it's rare because they spend way too much of their political capital trying to insulate physicians from accountability," Clark says. "So, there are instances where we work together. But, again, remember the locusts."

John Commins is a content specialist and online news editor for HealthLeaders, a Simplify Compliance brand.

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