Georgia Court Kills Caps on Medical Malpractice While Missouri Court Upholds Caps
By a 7-0 vote, the Supreme Court of Georgia on Monday struck down the state’s caps on pain and suffering damages in medical malpractice cases. “The very existence of the caps, in any amount, is violative of the right to trial by jury,” Chief Justice Carol W. Hunstein wrote in her opinion for the court.
The ruling was the climax of the legal fights over the 2005 tort reform package. Although the court’s response to various aspects of the package had been mixed, the caps, which generally limit non-economic damages to $350,000 in a case against a single medical malpractice defendant, were the most controversial part of Senate Bill 3. Courtesy of DailyReportOnline.com
Missouri Supreme Court ruling that keeps intact Missouri’s cap on non-economic damages in medical liability lawsuits. In doing so, the court upheld years of prior decisions which supported tort reform measures. Although the court held the cap was unconstitutional to plaintiffs whose injuries occurred before the law was enacted, it did not find the reforms including the cap – violated any other section of the Constitution.
Missouri had been mired in a professional liability insurance crisis when the Missouri General Assembly passed a package of common-sense tort reforms including the cap on non-economic damages in 2005. Since that time, the liability insurance premiums paid by physicians is approximately 17% less than in states that have no cap.
Good Doctors Get Sued Too; Protect Yourself
No matter how diligent physicians are, good physicians get sued for malpractice. Malpractice suits result in a great deal of stress and anguish, even when no wrongful act is committed. To provent a serious impact to a physician’s practice, personal finances and potentially his/her family, physicians should have an asset protection plan (APP) in place.
Most physicians have a trusted legal advisor who can help establish an APP. The APP should be in place from the very first day the physician begins treating patients. You should also do regular updates to the plan at least annually. The rise in lawsuits on questionable claims and liability for partner’s errors may require revisiting your plan strategy and coverage limits.
At a minimum any asset protection plan (APP) should have the following components:
- Put your estate plan in order before your first day of practice. Good estate planners develop a plan that will help navigate your way from where you are today to where you want to be in the future. Protect what you have currently, your equity in your home, your retirement plan, etc. If you wait until a claim gets made, you are too late.
- Educate yourself on your state’s laws regarding malpractice insurance. This way you know your level of exposure. Understand your exposure for the acts of others.
- Take Malpractice 101. This is not a real course but a really good malpractice sales person will be happy to educate you on how malpractice works. A bad sales person will simply try to convince you that he knows best. Run from the bad sales people. Understand every line in your policy. Know your policy details inside and out, be clear about what is covered and where coverage ends.
- Review your personal insurance coverage(s). Consider all types of potential liability; life, disability, accidental death, lost wages insurance, etc. It is not uncommon for surgeons to carry coverage specifically for loss of work due to a hand injury. Professional liability is not the only risk to your assets. Consider the employee who gets in an automobile accident while driving to the work and kills a carload of engineers.
- Structure your professional corporation in such a way as to make insuring the corporation straight forward and affordable. A knowledgeable attoerney can advise you on the benefits of the specific forms of incorporation. Your attorney can also advise you on the best way to maximum your liability protection.
- Consult a Certified Public Accountant (CPA) to insure that you are following the letter of the law when it comes to your tax liability. Your CPA will also provide the tax benefits of the different forms of incorporation.
The best way to develop and maintain your asset protection plan is to seek the help of your three trusted advisors; your attorney, your CPA and your practice manager. These people are professionals that have been down this road many times and can be invaluable in developing and maintaining the protection that you need to sleep soundly at night.
