How Brian Kemp’s proposed legal overhaul could affect your health care

The Atlanta Journal-Constitution has reached out to experts to answer questions about Senate Bill 68’s impact on health. Here’s what we found.

Would SB 68 bring more doctors to Georgia?

It’s hard to say.

Proponents of the governor’s revamp of the state’s civil litigation system contend that the reason doctors are fleeing Georgia is, in part, because of the litigious environment.

“Our medical students and our residents are including the malpractice climate in Georgia as part of their rationale of whether they will or will not practice here in the state of Georgia,” said Dr. Patrice Walker, the chief medical officer for Atrium Health Navicent, during a legislative hearing.

A 2024 survey of 515 students graduating from medical schools in Georgia, including Emory, the Georgia Health Sciences University, Mercer and Morehouse, did not ask about the impact of lawsuits on where students wanted to pursue residency. Location was the strongest factor, with almost 63% saying it was their top priority.

However, opponents suggest that other reasons might be to blame — namely, Kemp’s refusal to expand Medicaid and the 2019 abortion-restricting statute he signed.

“We have heard and seen reporting that … the six-week abortion ban, which criminalizes doctors for providing abortion care and health care, has influenced the number of OB-GYNs who want to come down here and practice,” said House Democratic Caucus Chair Tanya Miller of Atlanta, during the hearing.

According to a 2023 analysis by the Research and Action Institute, a think tank of the Association of American Medical Colleges, the number of medical students applying for obstetrics and gynecologic residency in Georgia for dropped by 14.6% from 2023 to 2024.

Over the last few years, the Legislature has made a concerted effort to attract more doctors to Georgia, and especially in rural parts of the state. Those include offering reductions in student loans and expanding the state’s certificate of need program, which would allow for the establishment of more health care facilities.

Bernard S. Black, a professor at Northwestern University, analyzed Georgia’s medical malpractice environment in November on behalf of the Georgia Trial Lawyers Association.

According to the report, which was shared with The Atlanta Journal-Constitution, physicians’ preference for urban areas “is a national issue, to which Georgia is not immune.”

There are 27,750 active licensed physicians who live in Georgia, the Georgia Health Care Workforce Board shows. According to an analysis of the workforce data from the Medical Association of Georgia, which is an organization of physicians, about 10% practice in rural areas.

Among those who have completed residency and are deciding where to practice, a 2024 report found that less than half planned to stay in Georgia, and only 6% planned to work in rural areas.

Would the civil litigation legislation reduce patients’ health care insurance rates or health care costs?

Experts disagree.

Georgia has been looking outward — especially to Alabama, Florida, North Carolina, South Carolina, Tennessee and Texas — as examples of states that have enacted legislation addressing civil litigation.

However, those states have yielded mixed results. For example, as insurance companies lobbied the Florida Legislature in 2022 to make it harder to sue, they claimed they had lost millions of dollars. But a report by The Tampa Bay Times found that the insurers’ “affiliate companies made billions.” (An affiliate is a separate company, where the parent owns less than 50%.)

For general surgery and OB-GYN specialties, which are considered high malpractice risk, and internal medicine, considered medium risk, Black’s report found their liability coverage rates in neighboring Southern states “fell in the 1990s, rose rapidly from 2000-2005, and have gradually declined since, although not in every year.”

When it comes to patients, Jason Branch, an Atlanta attorney who represents plaintiffs in medical malpractice cases, said “there’s nothing in SB 68 that addresses health care premiums and health care costs and a patient’s health care premium will not be impacted whatsoever by SB 68.”

Joanne Doroshow, the executive director of the Center for Justice & Democracy and an adjunct professor at New York Law School, said “what drives insurance rates up and down has nothing to do with claims or litigation. It has to do with the profit cycle of the insurance industry.”

However, Anna Adams, the executive vice president for external affairs at the Georgia Hospital Association, said patients are seeing their health care costs rise due to lawsuits in ways they may not realize.

“Providers are more frequently practicing ‘defensive medicine’ by ordering more tests primarily to protect themselves from a lawsuit rather than benefit the patient,” she said. Those additional precautionary labs and tests are not only driving up patients’ bills but also the costs to employers for health insurance.

Would Kemp’s bill prevent hospitals from closing down?

Maybe, but it’s one piece of the puzzle.

Eighteen hospitals in Georgia were at risk of closing last year, the AJC reported. Since 2013, 12 hospitals in rural and metro areas have closed, according to the Georgia Hospital Association.

Part of the reason for their closures, hospital executives said, is because of higher frequency of lawsuits filed and the larger jury awards given. Hospitals can’t keep up.

“Jurors think, ‘Hospitals have deep pockets. It won’t hurt them.’ What they don’t know is if you have a huge award against a hospital like mine, we have to file bankruptcy,” said Bill Lee, CEO of Evans Memorial Hospital in Claxton. “It could shut down a hospital.”

From 2021 to 2013, insurers paid about $436,000 per liability claim nationally. In Georgia, during that same time period, insurers paid about $622,000, according to the Healthcare Liability Market database — a project of MedPro Group, the largest provider of health care liability insurance in the nation.

“Those large verdicts lead to higher insurance costs and increased financial risk for our hospitals and our doctors, especially for those who offer labor and delivery, emergency medicine and surgical specialties,” Adams said.

However, some lawmakers remain skeptical.

“I really hate to see hospitals closing down, especially in rural areas,” said state Rep. Tyler Paul Smith, a Republican from Bremen. “But I don’t think lawsuits are what’s causing that to happen.”

House Democrats have taken a caucus position against the legislation.

Are there any other options for patients seeking redress?

In 2023, the Georgia House almost unanimously passed the Georgia Candor Act, sponsored by state Rep. Sharon Cooper, a Republican from Marietta.

“We have a current system of shame and blame when there’s been an adverse health care outcome. That has led to deny, defend, delay and litigation,” she said on the House floor. ”

A candor process would allow patients and doctors to speak openly and come to a resolution together that doesn’t necessarily involve suing. Patients would have 150 days from the time the incident occurred to enter into a candor agreement and then come to a resolution with the doctor and hospital within 60 days. Patients would strongly be encouraged to be represented by an attorney. Colorado and Iowa have already implemented such an arrangement.

Cooper, a nurse, said her motivation for the legislation partially stemmed from her own experiences of her late husband, Tom.

“I still have feelings about Tom’s death. I think there was a problem,” she said. “I wasn’t after money, but I had unresolved issues about what happened in his last hospital admission. I would have appreciated being able to enter into a candor discussion about what happened.”

The bill received votes of support in Senate committees, but never got a full Senate vote. Cooper said she was not introducing the bill this year because she didn’t want it to interfere with Kemp’s legislation.