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Donald Palmisano Jr., Medical Association of Georgia
Palmisano

Georgia enacts physician shield law


By Andis Robeznieks
Posted: May 7, 2013 - 12:45 pm ET
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A provision in the U.S. House of Representatives' version of the Patient Protection and Affordable Care Act that was left out of the Senate version has been resurrected and signed into law in the state of Georgia.

Signed by Gov. Nathan Deal on May 6, Georgia's physician shield law prevents administrative payment guidelines from being introduced as the standard of care in malpractice suits.

“The development, recognition or implementation of any guideline by any public or private payor or the establishment of any payment standard or reimbursement criteria under any federal laws or regulations related to healthcare shall not be construed, without competent expert testimony establishing the appropriate standard of care, to establish a legal basis for negligence or the standard of care or duty of care owed by a healthcare provider to a patient in any civil action for medical malpractice or product liability,” the new law states.

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Donald Palmisano Jr., executive director of the Medical Association of Georgia, said the law is necessary because payment guidelines, such as the nonpayment for healthcare services after a “never event” such as a wrong-site surgery, were being introduced into legal arguments in medical liability suits.

“That's not a standard-of-care issue, that's a payment issue,” Palmisano said. “The standard of care should not be determined by any public or private payment guidelines, it should be left to the experts.”

In an e-mail, William Clark, director of political affairs for the Georgia Trial Lawyers Association, noted that the law does not create a safe harbor for doctors who failed meet appropriate standards of care.

“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 said in the e-mail.

He added, too, that the law goes both ways in that doctors cannot assure that compliance with a payment guideline is evidence that he or she provided appropriate care.

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

While Palmisano said that MAG had heard from defense attorneys citing examples of payment guidelines being introduced into malpractice proceedings, Clark said his association is not aware of a single instance where a medical malpractice suit was based on a doctor's failure to meet a payment guideline.

The law was based on model legislation drafted by the American Medical Association's Advocacy Resource Center, and the AMA issued a news release quoting Dr. Patrice Harris, an AMA board member, who said the measure was designed “to make it clear that federal standards or guidelines designed to enhance access to high-quality health care 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 healthcare for Georgia's patients,” added Harris, an Atlanta psychiatrist.

The 7,000-member state medical association issued its own release that stated the law created a barrier protecting Georgia doctors from a number of “ancillary guidelines” included in the Affordable Care Act.

“Physicians in the country are already held to a nearly perfect standard, which is why we have the best medical care in the world,” Dr. W. Scott Bohlke, MAG president, said in a news release. “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, these are simply cost-management tools for the federal government and other third-party payers.”

Palmisano said that MAG worked with the Georgia Trial Lawyers Association to craft the final language on the bill.

Since it was developed from model legislation, Palmisano said it could be expected that other states will follow Georgia's lead on this issue, though he said no other state physician associations have contacted him yet.

Before being signed by the state's Republican governor, the bill passed the state legislature in March with a 134-35 vote in the state House and a 49-2 vote in the state Senate.

The bill was introduced by state Rep. Donna Sheldon, a Republican from the northern Georgia town of Dacula. “Georgia doctors and other medical providers should be able to continue practicing without unnecessary or unexpected intrusions by the federal government,” Sheldon said in a news release.

Follow Andis Robeznieks on Twitter: @MHARobeznieks


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