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Tort Reform Propositions Affecting Defendants in Dental Malpractice Lawsuits

Written by: Sandro Stojanovic, Esq.

At this time, the Georgia Assembly is in session and is considering many bills, including, some favorable tort reform propositions that will affect defendants in dental malpractice matters. First, SB 374 proposes the following amendment:

Any offer to settle a tort for personal injury, bodily injury, or death must include all medical records related to the subject of the tort claim, including but not limited to, any prior injuries or medical treatment that are reasonably related to the injury or condition that is the subject of the tort claim; and medical bills or receipts or other evidence of payment of such bills. Section 1.

This change would require claimants to do more than merely submit a demand with medical records and bills subsequent to the incident. A claimant would need to submit records of prior injuries or treatment reasonably related to the injury or condition that is the subject of the claim. This allows the dentist and his or her liability insurance company to have a more thorough look at the medical history of the claimant and to better analyze the claim. SB 374 may be viewed here: http://www.legis.ga.gov/legislation/en-US/Display/20192020/SB/374.

Second, amendments to SB 390 propose that:

(1) Plaintiff shall not be allowed to argue to the jury directly, or by analogy, a specific worth or monetary value of the pain and suffering or the value of any life in any wrongful death action. This proposition would prohibit plaintiffs from “jury anchoring”. This is a cognitive technique used by plaintiffs to lock in the minds of a jury a specific, usually very high, monetary award for the pain and suffering of the plaintiff/decedent. Juries will have an opportunity to consider the evidence and decide on their own the value of a pain and suffering claim or the life of the decedent without reference to a plaintiff’s counsel’s high number. Section 1-4.

(2) If a plaintiff seeks damages in excess of $150,000.00 and a defendant disputes liability, the court shall order separate trials for liability and damages, unless the court, for good cause shown, orders a single trial. However, evidence relating solely to the compensatory damages (medical bills, etc.) shall not be admissible until the trier of fact has determined that the defendant is liable. This procedural change would require the parties to focus on the liability portion of the lawsuit, which is too often disregarded by the jury in light of high medical bills incurred by plaintiff or gruesome injuries that could have developed following the treatment. Overall, the jury will be able to make a more rational decision on liability, without the pressure of high medical bills hanging over their heads. Section 1-18.

(3) A Party can file a motion to set aside a judgment up to three years after the date of the judgment. This procedural change would allow defendants more time to challenge default judgments.  Section 1-21.

(4) Medical funding agreements between a plaintiff and a medical funding company shall be discoverable and admissible in trial to show potential bias and credibility of any causation testimony offered by plaintiff’s health care provider. The amendment also prohibits medical funding companies from making decisions as to the conduct, settlement, or resolution of the legal claim, referring plaintiffs to certain medical providers, and referring plaintiffs to certain lawyers. Medical funding companies offer loans to plaintiffs in which medical finding company agrees to pay a plaintiff’s medical bills, and in return, the medical funding company receives a portion of the settlement or the verdict, in addition to the interest. Opponents of the medical funding companies point to the unethical interest of the medical funding company in the litigation process, mostly through their involvement in the direction of a plaintiff’s treatment and in the settlement of the case. This amendment is an attempt by the General Assembly to regulate medical funding companies and their involvement in the litigation process and to protect plaintiffs from being unduly influenced by the medical funding company in making their decision in the litigation process. All too often, plaintiffs are reluctant to settle a case because of their outstanding loan with the medical funding company. Part VIA, Section 6A-1.

(5) In any civil action, special damages for medical expenses that may be admissible shall be limited to the amounts actually: (1) paid by or on behalf of the claimant to health care providers for medically necessary care, treatment, or services; and (2) necessary to satisfy incurred but unpaid charges due to the health care provider by plaintiff. This amendment would prohibit “phantom damages,” which are damages that plaintiff has not paid and will never pay. Part VIIA, Section 7A-1. SB 390 may be viewed here: http://www.legis.ga.gov/legislation/en-US/Display/20192020/SB/390.

SB 415 has almost the same provisions as SB 390, however, it has been strategically assigned to the Senate Insurance and Labor Committee. SB 415 may be viewed here: http://www.legis.ga.gov/legislation/en-US/Display/20192020/SB/415.

The above-mentioned bills and amendments are an attempt to level the playing field in the legal process in the State of Georgia. We expect that these bills will be amended as they move through the General Assembly, however, the bills are a move in the positive direction. It has been 15 years since the last significant tort reform measures passed in the General Assembly. The voters, especially licensed professionals in this state, should contact their legislators and urge them to support Senate Bills 374, 390, and 415.