05 LC 29
1550
House
Bill 274
By:
Representatives Millar of the
79th,
Hill of the
21st,
Benton of the
31st,
and Maxwell of the
17th
A
BILL TO BE ENTITLED
AN ACT
AN ACT
To
amend Titles 31, 33, and 51 of the Official Code of Georgia Annotated, relating
respectively to health, insurance, and torts, so as to provide a comprehensive
mechanism to address rising medical malpractice insurance rates and the need for
tort reform; to change provisions relating to duties, functions, and powers of
the Department of Human Resources; to provide for confidentially of certain
information; to provide for fees on medical malpractice insurance premiums; to
limit liability on damages in certain circumstances; to provide for legislative
findings; to change certain provisions relating to the amount and method of
computing tax on insurance premiums generally; to change provisions relating to
abatement or reduction of tax on insurance premiums; to provide for definitions;
to provide for financial limitations with respect to certain damages; to provide
for related matters; to provide for an effective date and applicability; to
repeal conflicting laws; and for other purposes.
BE
IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:
SECTION
1.
The
General Assembly makes the following findings: Georgia hospitals and health care
providers are dealing with increases in medical malpractice insurance premiums,
and hospitals are experiencing extreme difficulty in attracting a sufficient
number of physicians and other health care professionals to maintain an
effective team of professionals to provide needed care and assistance to
citizens of this state. The shortage of hospitals and health care providers
poses a serious threat to the health, welfare, and safety of the citizens of
Georgia. It is also recognized that stability in insurance premiums may be
achieved by analyzing claims and developing standards for ensuring patient
safety. Providing increased sharing of information in the health care system
will reduce unintended injury and improve patient care. It is intended that the
Department of Human Resources undertake a study of claims and develop patient
safety standards which will be funded in part by a fee paid by medical
malpractice insurers. The General Assembly further finds that, in the public
interest, it continues to be the responsibility of the state to take measures to
facilitate an environment which promotes competition among current health and
liability insurers and encourages additional competitors to enter the market and
to contain health insurance and professional liability insurance costs and
thereby provide reasonable assurance of affordable health and professional
liability insurance for the benefit of all Georgians. The Georgia General
Assembly concludes that certain steps can be taken to preserve Georgia
citizenś
access to health care on the one hand, while on the other hand providing
appropriate remedies for patients who are negligently injured.
SECTION
2.
Title
31 of the Official Code of Georgia Annotated, relating to health, is amended by
striking "and" at the end of paragraph (12) of Code Section 31-2-1, relating to
the duties, functions, and powers of the Department of Human Resources,
inserting "; and" in lieu of the period at the end of paragraph (13), and adding
a new paragraph (14) to read as follows:
"(14)
Contract for an analysis of health care liability claims as defined in Code
Section 51-1-29.5 and develop standards to ensure health care patient safety.
Information collected by the department or its contractor pursuant to this
paragraph shall be confidential, shall not be disclosed, and shall not be
subject to Article 4 of Chapter 18 of Title 50, relating to open records, or
subject to subpoena, discovery, or introduction into evidence in any civil or
criminal
proceeding."
SECTION
3.
Title
33 of the Official Code of Georgia Annotated, relating to insurance, is amended
by adding a new subsection (c) to Code Section 33-8-4, relating to the amount
and method of computing tax on insurance premiums generally, to read as
follows:
"(c)(1)
As used in this subsection, the term 'gross direct premiums' shall not include
annuity considerations.
(2)
In addition to the tax provided for in subsection (a) of this Code section, all
foreign, alien, and domestic insurance companies doing business in this state
shall pay a fee of 1 percent upon the gross direct premiums received by them for
medical malpractice insurance on and after July 1, 2005. The fee shall be levied
upon persons, property, or risks in Georgia, from January 1 to December 31, both
inclusive, of each year without regard to business ceded to or assumed from
other companies. The fee shall be imposed upon gross premiums received from
direct writings without any deductions allowed for premium abatements of any
kind or character or for reinsurance or for cash surrender values paid or for
losses or expenses of any kind; provided, however, deductions shall be allowed
for premiums returned on change of rate or canceled policies.
(3)
It is the intent of the General Assembly that the funds generated by the fee
imposed by this subsection may be made available to and may be appropriated to
the Department of Human Resources for analysis of medical malpractice claims and
development of standards to ensure patient
safety."
SECTION
4.
Said
title is further amended by striking Code Section 33-8-5, relating to abatement
or reduction of tax on insurance premiums, and inserting in lieu thereof the
following:
"33-8-5.
Whenever
any insurance company doing business in this state shall make it appear to the
Commissioner, by evidence satisfactory to him
or
her, that one-fourth of its total assets,
as of December 31 of any taxable year, exclusive of direct obligations of the
United States, consists of or is invested in any or all of the following classes
of property:
(1)
General obligation bonds of this state or of any political subdivision of the
State of Georgia;
(2)
Revenue bonds or revenue anticipation certificates of any county, municipality,
or political subdivision of this state;
(3)
Revenue bonds or revenue anticipation certificates of any authority or public
corporation created by or pursuant to the laws of this state;
(4)
Real estate situated in and subject to taxation by this state or its political
subdivisions;
(5)
Tangible personal property located in this state and subject to taxation by this
state or its political subdivisions;
(6)
Loans secured by liens on real estate situated in this state;
(7)
Policy loans on insurance policies issued by the company on lives of persons
resident in this state;
(8)
Intangible property having a taxable situs in this state; or
(9)
Shares in Georgia corporations in which the insurance companies are authorized
to invest under the laws of this state,
then
the gross premium tax levied by
subsection (a)
of Code Section 33-8-4 shall be abated or
reduced to 1 1/4 percent upon the gross premium of any company subject to
taxation by
said Code
section
subsection (a)
of Code Section 33-8-4 and, if the amount
so invested by any company shall be as much as three-fourths of its total
assets, exclusive of direct obligations of the United States, then the said
premium tax shall be abated or reduced to one-half of 1 percent upon the gross
premiums of the company subject to taxation by
said Code
section
subsection (a)
of Code Section
33-8-4."
SECTION
5.
Title
51 of the Official Code of Georgia Annotated, relating to torts, is amended by
adding a new Code section immediately following Code Section 51-1-29.4, relating
to liability of voluntary health care providers and sponsoring organizations, to
be designated Code Section 51-1-29.5, to read as follows:
"51-1-29.5.
(a)
As used in this Code section, the term:
(1)
'Claimant' means a person, including a
decedent́s
estate, seeking or who 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 institution' means:
(A)
An institution as defined in paragraph (1) of Code Section 31-7-1;
(B)
A hospital;
(C)
A hospital system;
(D)
A hospice as defined in paragraph (3) of Code Section 31-7-172;
(E)
A facility providing mental health care under Title 37; or
(F)
An end stage renal disease facility licensed under Chapter 44 of Title
31.
(3)
'Health care liability claim' means a cause of action for medical malpractice,
as defined in Code Section 9-3-70, against a health care provider for treatment,
lack of treatment, or other claimed departure from accepted standards of medical
care or health care or safety or professional or administrative services
directly related to health care which proximately results in injury to or death
of a claimant.
(4)
'Health care provider' means any person licensed under Chapter 9, 11, 26, 30,
33, 34, 35, or 39 of Title 43 who provides care or assistance to an individual
within the scope of such health care
provideŕs
licensure, either voluntarily or at the request of a hospital, including but not
limited to any health care provider who is 'on call' to a hospital. The term
includes an officer, director, shareholder, member, partner, manager, owner, or
affiliate of a health care provider and an employee, independent contractor, or
agent of a health care provider acting in the course and scope of the employment
or contractual relationship.
(5)
'Hospital' means a facility which has a valid permit or provisional permit
issued by the Department of Human Resources under Chapter 7 of Title 31. Such
term shall also include any employee of such hospital who provides care or
assistance to individuals within the scope of his or her employment, whether or
not such person is a health care provider.
(6)
'Hospital system' means one or more hospitals located in this state that are
under the common governance or control of a single corporate
parent.
(7)
'Noneconomic damages' means damages awarded for the purpose of compensating a
claimant 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. This term does not include past or future:
(A)
Medical expenses, including rehabilitation and therapy;
(B)
Wages;
(C)
Income;
(D)
Funeral and burial expenses;
(E)
The value of services performed by the injured in the absence of the injury or
death; or
(F)
Other monetary expenses.
(b)
Without waiving or affecting and cumulative of any existing immunity from any
source, unless it is established that injuries were caused by gross negligence
or willful or wanton misconduct, in an action on a health care liability claim,
excluding an action for wrongful death, where final judgment is rendered against
a health care provider other than a health care institution, the limit of civil
liability for noneconomic damages of the health care provider other than a
health care institution, inclusive of all persons and entities for which
vicarious liability theories may apply, shall be limited to an amount not to
exceed $250,000.00 for each claimant, regardless of the number of defendant
health care providers other than a health care institution against whom the
claim is asserted or the number of separate causes of action on which the claim
is based.
(c)
Without waiving or affecting and cumulative of any existing immunity from any
source, unless it is established that injuries were caused by gross negligence
or willful or wanton misconduct, in an action on a health care liability claim,
excluding an action for wrongful death, where final judgment is rendered against
a single health care institution, the limit of civil liability for noneconomic
damages for such health care institution, inclusive of all persons and entities
for which vicarious liability theories may apply, shall be limited to an amount
not to exceed $250,000.00 for each claimant.
(d)
Without waiving or affecting and cumulative of any existing immunity from any
source, unless it is established that injuries were caused by gross negligence
or willful or wanton misconduct, in an action on a health care liability claim,
excluding an action for wrongful death, where final judgment is rendered against
more than one health care institution, the limit of civil liability for
noneconomic damages for each health care institution, inclusive of all persons
and entities for which vicarious liability theories may apply, shall be limited
to an amount not to exceed $250,000.00 for each claimant and the limit of civil
liability for noneconomic damages for all health care institutions, inclusive of
all persons and entities for which vicarious liability theories may apply, shall
be limited to an amount not to exceed $500,000.00 for each
claimant.
(e)
Without waiving or affecting and cumulative of any existing immunity from any
source, unless it is established that the death was caused by gross negligence
or willful or wanton misconduct, in a wrongful death action on a health care
liability claim where final judgment is rendered against a health care provider
the limit of civil liability for all damages shall be limited to an amount not
to exceed $500,000.00 for each claimant, regardless of the number of defendant
health care providers against whom the claim is asserted or the number of
separate causes of action on which the claim is based.
(f)
Subsections (b), (c), (d), and (e) of this Code section do not apply to the
amount of damages awarded on a health care liability claim for the expenses of
necessary medical, hospital, and custodial care received before judgment or
required in the future for treatment of the injury.
(g)
An award for noneconomic damages in excess of the limits provided by this Code
section shall be reduced by the court either before the entry of judgment or by
amendment of the judgment after entry of judgment, and such reduction shall be
made before accounting for any other reduction in damages required by
law."
SECTION
6.
This
Act shall become effective on July 1, 2005. This Act shall apply only to causes
of action arising on or after the July 1, 2005. Any cause of action arising
prior to that date shall continue to be governed by the laws in effect at the
time such cause of action arose.
SECTION
7.
All
laws and parts of laws in conflict with this Act are repealed.