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By: Shaun Daugherty
Medical malpractice claims can be dangerous in front of a jury and some recent Georgia verdicts are proof of that. In Georgia, as many other states, medical doctors typically have consent clauses in their professional liability policies that require their consent before any payment may be offered by the insurance company. In part, this is because any payment by the insurance company on behalf of the provider to settle a malpractice claim is reportable to the National Practitioner’s Databank(“NPDB”) and, for physicians, the Georgia Composite Medical Board (“the Board”). The Board has the power over the providers’ licenses and a report could start an investigation that could lead to sanctions against the providers’ license, up to and including revocation, and the sanctions are public record.
Because of the uncertainty in the medical malpractice trials, may times the parties seek some parameters in the form of high/low agreements where the plaintiff is guaranteed some minimal amount even if the jury returns a verdict in favor of the provider, but caps the top dollar payout even if the jury awards more. However, the consent clause in the providers’ insurance contracts usually require that this agreement also be consented to because the payment of the “low,” even in light of a defense verdict, would require a reporting to the Board, but not the NPDB. Georgia HB 128 changes this state reporting requirement now that it has been signed into law.
The NPDB does not require reporting of the payment of a “low” in light of a defense verdict in a medical malpractice trial and HB 128 seems to mirror the intent of the federal reporting requirements. Now, if a physician receives a defense verdict at trial, any payment of a “low” is no longer reportable to the Board by the insurance carrier and, thus, no potential investigation or sanctions. This removal of the reporting requirement may result in incentivizing physicians to consent to these types of agreements in the future to allow for more certainty on the potential outcomes of the cases, regardless of what a jury may do.
If you have questions or would like more information, please contact Shaun Daugherty at [email protected].