California dreamin' (Georgia Justice)

And technology catches up with Georgia justice

When the crowd that wants to reform Georgia's civil court system talks about the magic that caps on pain and suffering damages can do to control medical malpractice insurance rates, they always point to California.

Too bad they're not telling the whole story.

Lawmakers single California out for praise because the Golden State's medical malpractice insurance rates stabilized after caps on jury awards were passed. And if you only look at the raw numbers, tort reform proponents seem to be on to something.

That's why Georgia needs a $250,000 limit on pain and suffering damages, argued Senate Majority Leader Tom Price, R-Roswell, at a Judiciary subcommittee hearing last Wednesday (see Scalawag, p. 24). If you provide predictability to the court system, then you slow the increase of malpractice insurance rates that are forcing some doctors from their profession and putting some hospitals in a fiscal stranglehold. California points the way, Price argues.

Well, it does and it doesn't. California passed tort reform and a cap on pain and suffering damages in 1975, after being pressured to take the step by doctors and insurance companies.

But rates in California didn't stabilize after tort reform passed. They continued to climb much faster than the national average. Throughout the mid-1980s, they spiked by more than 20 percent annually, according to information compiled by the Foundation for Taxpayer and Consumer Rights, a nonpartisan organization that based its conclusions on reports from the National Association of Insurance Commissioners.

Proponents claimed rates continued to increase because of court challenges to the law, but after the last suit died in 1985, malpractice rates jumped 47 percent during the next three years — a time when premium inflation in the rest of the nation remained relatively flat.

The thing that finally stopped runaway malpractice rates was insurance reform. In 1988, California voters passed Proposition 103. It rolled back rates 20 percent, froze them for one year and set up a system of prior approval in which the state's insurance commissioner could "reject or alter rate increase requests," among other changes, according to the foundation.

And it was good for doctors, too. From 1991-'95, they received a large portion of more than $135 million in refunds from insurance companies, according to the California Department of Insurance. Two companies alone agreed to pay $18.5 million to their 9,500 doctors.

As Price correctly points out, though, lawmakers on the other side of the debate haven't come forward with any alternatives. That should change soon.

Allison Kelly, the executive director of Georgia Watch, a consumer group, keeps pointing to California's real success as the roadmap for Georgia. That would mean prior approval of any rate hikes, among other changes.

"It's not rocket science," Kelly says. "It's something real that affects the insurance industry. We need to be having the debate with insurance companies and regulatory agencies, because that's what's going to bring rates down, not capping people's access to justice and compensation. The other key is to reduce medical errors and medical malpractice."

Rep. Tom Bordeaux, D-Savannah, chairman of the House Judiciary Committee, said late last week that a working group planned to meet Tuesday to put together an alternative package to Price's tort reform bill.

State Sen. David Adelman, D-Atlanta, might succeed where Congress failed.

Adelman has proposed a bill that would require post-trial DNA testing in death penalty-eligible cases so long as the defendant files a motion and meets a list of four criteria. It's the same thing Congress tried to do during its last session. But that effort stalled after it won passage in the Senate Judiciary Committee.

Currently, defendants can seek post-trial DNA testing, but it is granted at a judge's discretion, "and those motions are routinely denied," Adelman says.

One hundred seventeen people wait on Georgia's death row, many of whom were sentenced before the advent of easy DNA testing.

The bill still has a few kinks, including how long to require evidence be preserved, but Adelman says the legislation has received support from all sides of the judicial system, and he's optimistic it will pass this session.

"By having this motion available, there would not be a DA who would go forward without a DNA test, and that's the point really," Adelman says. "The point is not to have there be a flurry of motions."

At a subcommittee hearing last week, Calvin Johnson, who was exonerated based on DNA evidence in a pair of rape cases in 1999, after spending 16 years in jail, testified on the bill's behalf.