05 LC 21
8143
House
Bill 339
By:
Representative Hatfield of the
177th
A
BILL TO BE ENTITLED
AN ACT
AN ACT
To
amend Title 51 of the Official Code of Georgia Annotated, relating to torts, so
as to limit medical damages in actions relating to health care in instances
where the defendant maintains medical liability insurance; to change provisions
relating to agency liability of medical facilities; to change provisions
relating to apportionment of award according to degree of fault; to create
provisions relating to apportioning damages in certain malpractice actions; to
provide for related matters; to provide for a penalty for bad faith failure to
settle a claim; to repeal conflicting laws; and for other purposes.
BE
IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:
SECTION
1.
(a)
The General Assembly finds that health care providers and health facilities
licensed in Georgia face uncertainty in the face of potential for liability in
medical legal actions; and, in addition to the cost of maintaining insurance in
large amounts, such persons have concerns about their personal liability in
excess of any such insurance. The result of this situation is the potential for
a diminution of the availability of access to health care services and a
resulting adverse impact on the health and well-being of the citizens of this
state.
(b) The General Assembly further finds that a mandated medical liability insurance coverage coupled with a limitation on liability will serve the interests of both health care providers and the citizens of this state, who have a reasonable expectation of affordable health care and redress in those rare instances of medical malpractice.
(b) The General Assembly further finds that a mandated medical liability insurance coverage coupled with a limitation on liability will serve the interests of both health care providers and the citizens of this state, who have a reasonable expectation of affordable health care and redress in those rare instances of medical malpractice.
SECTION
2.
Title
51 of the Official Code of Georgia Annotated, relating to torts, is amended by
adding a new Chapter 13 to read as follows:
"CHAPTER
13
51-13-1.
As
used in this Code section, the term:
(1)
'Claimant' means a person, including a
decedent́s
estate, who seeks or has sought recovery of damages in a health care liability
claim. All persons claiming to have sustained damages as the result of the
bodily injury or death of a single person are considered a single
claimant.
(2)
'Health care provider' means any person licensed under Chapter 9, 11, 26, 30,
33, 34, 35, or 39 of Title 43 or any medical facility, nursing home, home health
agency, institution, or medical facility licensed or defined under Chapter 7 of
Title 31. The term shall also include any corporation, professional corporation,
partnership, limited liability company, limited liability partnership,
authority, or other entity comprised of such health care providers.
(3)
'Medical damages' means, without limitation, damages for physical and emotional
pain, discomfort, anxiety, hardship, distress, suffering, inconvenience,
physical impairment, mental anguish, disfigurement, loss of enjoyment of life,
loss of society and companionship, loss of consortium, injury to reputation, and
all other nonpecuniary losses of any kind or nature, rehabilitation and therapy,
wages, income, funeral and burial expenses, the value of services performed by
the injured in the absence of the injury or death, and any other monetary
expense.
(4)
'Medical facility' means any institution or medical facility licensed as such
under Chapter 7 of Title 31.
51-13-2.
(a)
If a health care provider maintains a policy of medical liability insurance in
the amount of $1 million per incident, then in any verdict returned or judgment
entered in a medical malpractice action, including an action for wrongful death,
against such health care provider, the total amount recoverable by a claimant
for medical damages in such action shall be limited to an amount not to exceed
the amount of such insurance, regardless of the number of defendant health care
providers or facilities against whom the claim is asserted or the number of
separate causes of action on which the claim is based.
(b)
If a medical facility maintains a policy of medical liability insurance in the
amount of $5 million per incident, then in any verdict returned or judgment
entered in a medical malpractice action, including an action for wrongful death,
against such medical facility, the total amount recoverable by a claimant for
medical damages in such action shall be limited to an amount not to exceed the
amount of such insurance, regardless of the number of defendant health care
providers or facilities against whom the claim is asserted or the number of
separate causes of action on which the claim is based.
51-13-3.
(a)
Notwithstanding the provisions of Code Section 51-2-5, no medical facility which
complies with the notice provisions of either subsection (b) or (c) of this Code
section shall be liable for the acts or omissions of a health care professional
unless there exists an actual agency or employment relationship between the
medical facility and the health care professional.
(b)
The medical facility shall post a notice in the form and manner described
herein. Such notice shall:
(1)
Be posted conspicuously in the medical facility lobby or a public area of the
medical facility;
(2)
Contain print at least one inch high; and
(3)
Provide language substantially similar to the following:
'Some
or all of the health care professionals performing services in this medical
facility are independent contractors and are not medical facility agents or
employees. Independent contractors are responsible for their own actions and the
medical facility shall not be liable for the acts or omissions of any such
independent contractors.'
(c)
The medical facility shall have the patient or the
patient́s
personal representative sign a written acknowledgment that contains language
substantially similar to that set forth in paragraph (3) of subsection (b)
of this Code section.
(d)
The notice required in this Code section shall be sufficient if it meets the
requirements of either subsection (c) or (d) of this Code section even if the
patient or the
patient́s
personal representative did not see or read such notice for any reason,
including but not limited to medical condition or language
proficiency.
(e)
Whether a health care professional is an actual agent, an employee, or an
independent contractor shall be determined by the language of the contract
between the health care professional and the medical facility. In the absence of
such a contract, or if the contract is unclear or ambiguous, a health care
professional shall only be considered the medical
facilitýs
employee or actual agent if it can be shown by a preponderance of the evidence
that the medical facility reserves the right to control the time, manner, or
method in which the health care professional performs the services for which
licensed, as distinguished from the right to merely require certain definite
results.
(f)
If the court finds that there is no contract or that the contract is unclear or
ambiguous as to the relationship between the medical facility and health care
professional, the court shall apply the following:
(1)
Factors that may be considered as evidence the medical facility exercises a
right of control over the time, manner, or method of the health care
professionaĺs
services include: the parties believed they were creating an actual agency or
employment relationship; the health care professional receives substantially all
the employee benefits received by actual employees of the medical facility; the
medical facility directs the details of the health care
professionaĺs
work step-by-step; the health care
professionaĺs
services are terminable at the will of the medical facility without cause and
without notice; the medical facility withholds, or is required to withhold,
federal and state taxes from the remuneration paid to the health care
professional for services to the patients of the medical facility; and factors
not specifically excluded in paragraph (2) of this subsection; and
(2)
Factors that shall not be considered as evidence a medical facility exercises a
right of control over the time, manner, or method of the health care
professionaĺs
services include: a requirement by the medical facility that such health care
professional treat all patients or that any health care professional or group is
obligated to staff a medical facility department continuously or from time to
time; the medical
facilitýs
payment to the health care professional on an hourly basis; the provision of
facilities or equipment by the medical facility; the fact a health care
professional does not maintain a separate practice outside the medical facility;
the source of the payment for the professional liability insurance premium for
that health care professional; the fact that the professional fees for services
are billed by the medical facility; or any requirement by the medical facility
that such health care professional engage in conduct required to satisfy any
state or federal statute or regulation, any standard of care, any standard or
guideline set by an association of medical facilities or health care
professionals, or any accreditation standard adopted by a national accreditation
organization.
51-13-4.
(a)
Where an action is brought against one or more health care providers or health
care facilities for injury to the person and the plaintiff is to some degree
responsible for the injury or damages claimed, the trier of fact, in its
determination of the total amount of damages to be awarded, if any, shall
determine the percentage of negligence of the plaintiff and shall reduce the
amount of damages otherwise awarded to the plaintiff in proportion to his or her
negligence compared with that of the person or persons liable for the injury or
damages claimed.
(b)
Where an action is brought against more than one health care provider or medical
facility for injury to the person, the trier of fact, in its determination of
the total amount of damages to be awarded, if any, shall after a reduction of
damages pursuant to subsection (a) of this Code section, if any, apportion
its award of damages among the persons who are liable according to the degree of
fault of each person. Damages apportioned by the trier of fact as provided in
this Code section shall be the liability of each person against whom they are
awarded, shall not be a joint liability among the persons liable, and shall not
be subject to any right of contribution.
(c)
Notwithstanding the provisions of this Code section and any other provision of
law which might be construed to the contrary, the plaintiff shall not be
entitled to receive any damages if the plaintiff is 50 percent or more
responsible for the injury or damages claimed.
(d)
This Code section shall not affect venue provisions regarding joint
actions.
51-13-5.
(a)
In the event of a claim subject to the provisions of this chapter, the liability
insurer has an affirmative duty to adjust the claim fairly and promptly, to make
a reasonable effort to investigate and evaluate the claim, and, where liability
is reasonably clear, to make a good faith effort to settle with the claimant
potentially entitled to recover against the insured under such policy. Any
insurer who breaches this duty may be liable to pay the claimant, in addition to
the loss, not more than 50 percent of the liability of the insured for the loss
or $5,000.00, whichever is greater, and all reasonable
attorneýs
fees for the prosecution of the action.
(b)
An insurer breaches the duty of subsection (a) of this Code section when, after
investigation of the claim, liability has become reasonably clear and the
insurer in bad faith offers less than the amount reasonably owed under all the
circumstances of which the insurer is aware.
(c)
The amount of recovery, including reasonable
attorneýs
fees, if any, shall be determined by the trier of fact and included in a
separate judgment against the insurer rendered in the action; provided, however,
the
attorneýs
fees shall be fixed on the basis of competent expert evidence as to the
reasonable value of the services based on the time spent and legal and factual
issues involved in accordance with prevailing fees in the locality where the
action is pending; provided, further, the trial court shall have the discretion,
if it finds the jury verdict fixing
attorneýs
fees to be greatly excessive or inadequate, to review and amend the portion of
the verdict fixing
attorneýs
fees without the necessity of disapproving the entire verdict. The limitations
contained in this Code section in reference to the amount of
attorneýs
fees are not controlling as to the fees which may be agreed upon by the
plaintiff and his or her attorney for the services of the attorney.
(d)
In any action brought pursuant to subsection (b) of this Code section, and
within 20 days of bringing such action, the plaintiff shall, in addition to
service of process in accordance with Code Section 9-11-4, mail to the
Commissioner of Insurance and the
consumerś
insurance advocate a copy of the demand and complaint by first-class mail.
Failure to comply with this subsection may be cured by delivering
same."
SECTION
2.
All
laws and parts of laws in conflict with this Act are repealed.