Healthcare provider immunities and the destruction of patients’ rights
In Georgia, when a healthcare provider commits negligence resulting in an injury or death of a patient, significant laws are in place designed to protect a healthcare provider from liability and, at the same time, render a patient legally helpless. In the past several years the license to injure patients in Georgia has continued to grow thanks to insurance and healthcare industry lobbies successfully exerting pressure on the state’s elected officials. Below are just some of the laws, interspersed with other pertinent healthcare data, which exist that make the State of Georgia a scary place to receive healthcare and an even scarier place to attempt to protect your rights arising out of medical malpractice.
The Dow Firm P.C. specializes in medical malpractice, nursing home and doctor error cases where personal injury and wrongful death occur. The Dow Firm P.C. has secured over 50 million dollars ($50,000,000) in judgments and recoveries in serious injury, motor vehicle, healthcare and wrongful death cases in a little over a decade.
Contact The Dow Firm P.C. today via this 1 minute form or call our Georgia office at (912) 264-1919 for a quick and free case evaluation and consultation.
Peer Review – the shield that cuts like a sword
“Peer review” is a statutory scheme applicable to the healthcare industry in Georgia where secret investigations into medical errors occur, unbeknownst to injured patients and the public at large. Specifically, under Georgia’s peer review law the healthcare provided to a hospital patient who suffers a bad outcome (such as a death or other serious injury) is secretly reviewed by a group of healthcare providers called a “peer review” or “quality assurance” committee. These reviews occur without a patient’s consent, participation or knowledge. Once the committee has concluded its investigation, its findings remain confidential and cannot be disclosed to the injured patient or, in the case of death, the surviving family of a patient killed by medical negligence.
The philosophical reasoning behind the peer review statutes is that healthcare providers should be encouraged to scrutinize their work so that future healthcare can be better delivered “for the public’s good”. In actuality, the peer review function has become an abused process whereby hospitals and healthcare providers hide their mistakes and bury information to keep the truth about negligence from being discovered in legitimate malpractice litigation.
In most cases involving a serious injury or death occurring at a hospital, it is more than likely the matter has been the subject of a peer review for which a finding of neglect will not be revealed.
The extent of this deception is remarkable when one considers the number of preventable deaths attributable to medical errors which occur annually in hospitals alone.
The staggering number of hospital/medical malpractice deaths occurring annually
A 1999 study by the Institute of Medicine, which is part of the National Academy of Sciences, established that each year between 44,000 and 98,000 hospital patients in the U.S. die from medical malpractice. These figures reveal medical malpractice to be one of the leading causes of death in the United States as more people die each year as a result of medical errors than from motor vehicle accidents. This study is not alone in finding that medical malpractice has become an epidemic in the United States.
The 1990 Harvard School of Public Health study of medical malpractice found that nationally, more than 180,000 people die, at least in part, because of medical mistakes. What is even more interesting is the fact that the vast majority of patients harmed by medical malpractice do not protect their legal rights by seeking financial compensation for their injuries. The Harvard Medical Practice Study discovered that only one (1) in eight (8) patients harmed sought redress in the form of an injury claim. This, of course, totally debunks the insurance and healthcare industry’s claim regarding “frivolous” medical malpractice suits driving up healthcare providers’ premiums. Discrediting the cry for healthcare liability reform even further, is research which has shown that of those who do pursue litigation arising out of medical negligence, only one (1) in sixteen (16) recovers any damages.
The healthcare community’s conspiracy of silence
Every medical provider (whether it is a doctor, nurse or otherwise) anticipates the day when they could be responsible for their own healthcare negligence which has harmed or killed a patient. For that reason, there is great camaraderie within the healthcare community (especially the professional communities found in smaller towns). This kinsmanship serves as yet another layer of defense injured parties must penetrate to elicit the truth about healthcare negligence.
Doctors know it is serious business when someone is injured due to medical malpractice. The stakes are life and death and that reality comes with a substantial price-tag. For that reason, healthcare providers never want to “sell-out” another healthcare provider for fear that their day will come. Often, the end result is sparse medical charting which fails to reveal a full picture of a patient’s care. This enables providers to revise history or lack any recollection of specifics at a later date (as in a deposition). Likewise, where there is a question concerning the quality of care rendered by a healthcare provider, other providers are reluctant to stand up and tell the truth on behalf of an injured party, yet all-too-ready to come to the aid of a colleague. Stated simply, there is an added degree of difficulty proving a healthcare negligence case because the providers stand as gate-keepers to much of the essential information.
Liability immunity for certain providers committing negligence which hurts or kills patients
In 2005, Georgia’s legislature created what is one of the worst statutes ever put on the books. Unfortunately, it affects all Georgians seeking emergent healthcare in a hospital’s emergency room, obstetrical unit or surgical suite. Fortunately, however, the statute is so harsh and poorly drafted it may be unconstitutional and subject to being overturned by the Georgia Supreme Court.
In practical terms, if you experience a medical emergency (such as chest pain) which sends you to the hospital for care and your providers seriously injure you while providing treatment due to obvious and avoidable medical negligence (like misdiagnosing a heart attack as indigestion), the statute intends to make it virtually impossible to hold the wrongdoers responsible.
This is true because O.C.G.A. § 51-1-29.5 requires that patients must prove their providers were not only negligent, but grossly negligent. In essence, a patient (or his surviving family) has to prove a substantially heightened level of negligence. Basically, it has to be shown the healthcare provider completely disregarded or intended to kill that patient. As absurd as this proposition sounds, this is the law in Georgia at this point in time.
Further, in proving such a medical injury case, a patient must establish gross negligence with clear and convincing evidence. In other words, besides raising the level on the type of negligence you must prove to protect your rights, the legislature also increased patients’ burden of proof beyond the ordinary burden of “a preponderance of the evidence”.
The good news about O.C.G.A. § 51-1-29.5 is that juries are ultimately in charge of the outcome of an emergency case. If there is any question about whether a healthcare provider’s treatment of a patient constitutes negligence or gross negligence, a jury, not a judge, is the final word on the determination.
If the people sitting on a trial jury disagree with this statute in principle and the facts in a case which are put before the jurors provide an arguable basis for finding against a provider’s negligence, a jury can defeat the intended unfairness of this statute by finding gross negligence by clear and convincing evidence and indicating as much on the jury’s verdict form.
A healthcare provider can admit killing a patient and not have the admission held against him.
Many people believe criminal defendants have all the rights in court at the exclusion of crime victims in a criminal trial. With the passage of O.C.G.A. § 24-4-416 civil case defendants in medical negligence trials have even more rights than criminal defendants. Under the cited statute, a healthcare provider can commit negligence upon a patient then admit the negligence to the patient and later keep his admission out of court.
O.C.G.A. § 24-4-416(b) states:
“In any claim or civil action brought on behalf of a patient allegedly experiencing an unanticipated outcome of medical care, any and all statements, affirmations, gestures, activities or conduct expressing benevolence, regret, apology, sympathy, commiseration, condolence, compassion, mistake, error, or a general sense of benevolence which are made by a health care provider or an employee or agent of a health care provider to the patient, a relative of the patient, or a representative of the patient and which relate to the unanticipated outcome shall be inadmissible as evidence and shall not constitute an admission of liability or an admission against interest.”
Incredibly, this statute actually permits a doctor to admit an error to the patient, patient’s relative or patient’s representative and then forbids a jury from hearing the truthful admission at trial. In theory, Georgia law gives healthcare providers and their attorneys license to completely obstruct justice. As a practical matter, a doctor can admit negligence out of court then put up a completely inconsistent defense before a jury.
This becomes apparent when one considers the procedural trial rules applicable to criminal defendants. If a criminal defendant admits committing a crime, this evidence is presented to a jury for consideration because anything criminal defendants say “can and will be used against them in a court of law” in Georgia. Medical malpractice defendants, however, are given even more protection than their criminal counterparts.
The Dow Firm, P.C. is a Georgia-based law firm focused on medical malpractice, hospital negligence, healthcare provider misconduct, and all aspects of personal injury and wrongful death law. Contact The Dow Firm P.C. today via this 1 minute form or call our Georgia office at (912) 264-1919 for a quick and free case evaluation and consultation.