HB 78 - Arbitration; medical malpractice claims; amend provisions
Georgia House of Representatives - 1995/1996 Sessions
HB 78 - Arbitration; medical malpractice claims; amend provisions
Page Numbers - 1/ 2/ 3/ 4/ 5/ 6/ 7/ 8/ 9
1. Pinholster 15th
House Comm: Judy / Senate Comm: /
House Vote: Yeas Nays Senate Vote: Yeas Nays
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House Action Senate
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1/9/95 Read 1st Time
1/10/95 Read 2nd Time
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Rules Suspended to Introduce
Code Sections amended: 9-9-60, 9-9-61, 9-9-62, 9-9-63, 9-9-64, 9-9-65, 9-9-66,
9-9-67, 9-9-68, 9-9-69, 9-9-70, 9-9-71, 9-9-72, 9-9-73, 9-9-74, 9-9-75, 9-9-76,
9-9-77, 9-9-78, 9-9-79, 9-9-80, 9-9-81, 9-9-82, 9-9-83
HB 78 LC 18 6484
A BILL TO BE ENTITLED
AN ACT
1- 1 To amend Chapter 9 of Title 9 of the Official Code of
1- 2 Georgia Annotated, relating to arbitration, so as to change
1- 3 certain certain provisions regarding arbitration of medical
1- 4 malpractice claims prior to filing a civil action for such
1- 5 claims; to change the tolling of the statute of limitations;
1- 6 to change the provision relating to submissions; to change
1- 7 the manner in which arbitrators are chosen; to change the
1- 8 duties of the arbitrators; to provide for punitive damages;
1- 9 to change by whom certain fees are paid; to change the
1-10 conditions and procedures relating to appeals of arbitration
1-11 findings; to change certain affidavit requirements; to
1-12 provide for the effects of unappealed arbitration findings;
1-13 to provide for reporting of certain medical malpractice
1-14 judgments or agreements; to change the provisions regarding
1-15 cost of arbitration and the compensation of arbitrators and
1-16 referees; to repeal conflicting laws; and for other
1-17 purposes.
1-18 BE IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:
SECTION 1.
1-19 Chapter 9 of Title 9 of the Official Code of Georgia
1-20 Annotated, relating to arbitration, is amended by striking
1-21 Article 2, relating to medical malpractice, and inserting in
1-22 its place the following:
"ARTICLE 2
1-23 9-9-60. (Index)
1-24 For the purposes of this article, the term 'medical
1-25 malpractice claim' means any claim for damages resulting
1-26 from the death of or injury to any person arising out of:
1-27 (1) Health, medical, dental, or surgical service,
1-28 diagnosis, prescription, treatment, or care, rendered by
1-29 a person authorized by law to perform such service or by
1-30 any person acting under the supervision and control of a
1-31 lawfully authorized person; or
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LC 18 6484
2- 1 (2) Care or service rendered by any public or private
2- 2 hospital, nursing home, clinic, hospital authority,
2- 3 facility, or institution, or by any officer, agent, or
2- 4 employee thereof acting within the scope of his or her
2- 5 employment.
2- 6 9-9-61. (Index)
2- 7 In addition to any other legal procedure for the
2- 8 resolution of Prior to commencing a civil action for
2- 9 medical malpractice claims, the parties to a medical
2-10 malpractice claim may shall submit the claim for
2-11 arbitration in accordance with this article.
2-12 9-9-62. (Index)
2-13 If the parties Any party to a medical malpractice claim
2-14 agree in writing to arbitrate the claim pursuant to this
2-15 article, they shall may file a petition in the superior
2-16 court of the county where any party resides for an order
2-17 authorizing requiring the arbitration of the claim in
2-18 accordance with this article and for the appointment of a
2-19 referee for the arbitration. If the judge determines that
2-20 the claim is a medical malpractice claim subject to this
2-21 article, within 30 days of the filing of the petition for
2-22 such order he the judge shall issue an order authorizing
2-23 requiring the arbitration and appointing a referee.
2-24 However, no agreement to arbitrate shall be enforceable
2-25 unless the agreement was made subsequent to the alleged
2-26 malpractice and after a dispute or controversy has
2-27 occurred and unless the claimant is represented by an
2-28 attorney at law at the time the agreement is entered into.
2-29 9-9-63. (Index)
2-30 (a) The filing of the petition for an order authorizing
2-31 requiring arbitration as provided in Code Section 9-9-62
2-32 shall toll any applicable statute of limitations, and the
2-33 statute of limitations shall remain tolled until the
2-34 earliest of:
2-35 (1) Thirty days after the filing of the petition, when
2-36 the judge has failed within the 30 days to issue
2-37 determined that the claim is not a medical malpractice
2-38 claim and has not issued an order authorizing
2-39 arbitration as provided in Code Section 9-9-62; or (2) Sixty days after the issuance of the judge's order
2-41 authorizing arbitration, when the parties or their
2-42 representatives have failed by such time to sign the
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LC 18 6484
3- 1 arbitration submission as provided in Code Section
3- 2 9-9-65; or (3) The date the arbitration submission is revoked as
3- 4 provided in Code Section 9-9-65. (b) If any of the contingencies listed in subsection (a)
3- 6 of this Code section occur and if the statute of
3- 7 limitations has not yet run, the medical malpractice claim
3- 8 may be brought in any court of this state having
3- 9 jurisdiction.
3-10 (2) The date the findings of the arbitrators are entered
3-11 on the minutes of the court pursuant to Code Section
3-12 9-9-79.
3-13 9-9-64. (Index)
3-14 The judge of the superior court of the county in which was
3-15 issued the order authorizing requiring arbitration shall
3-16 appoint a reporter to attend the proceedings of the
3-17 medical malpractice arbitration panel and to record
3-18 exactly and truly the testimony and proceedings in the
3-19 case being arbitrated, except the arguments of counsel.
3-20 All provisions relating to court reporter fees,
3-21 compensation, contingent expenses, and travel allowance,
3-22 as well as those relating to the furnishing of transcripts
3-23 and the style and form of transcripts, shall be the same
3-24 for reporters appointed to attend the arbitration panel
3-25 proceedings as those applicable to reporters of the
3-26 superior court of the county in which the arbitration was
3-27 authorized.
3-28 9-9-65. (Index)
3-29 (a) The referee shall meet with the parties or their
3-30 representatives, or both, prior to the arbitration. The
3-31 referee shall assist the parties in preparing an
3-32 arbitration submission which shall may contain the
3-33 following:
3-34 (1) A clear and accurate statement of the matters in
3-35 controversy;
3-36 (2) An agreement as to the payment of the costs of the
3-37 arbitration;
3-38 (3) The procedure to be followed in the arbitration;
3-39 (4) A list of the witnesses whose testimony the parties
3-40 desire to present to the arbitrators;
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LC 18 6484
4- 1 (5) The names of the arbitrators chosen by each party;
4- 2 (6) The time and place of meeting of the arbitrators;
4- 3 and
4- 4 (7) Any other matters that may be pertinent to the
4- 5 arbitration.
4- 6 (b) The submission shall be in writing and shall be signed
4- 7 by the parties or their representatives. When signed, the
4- 8 submission shall be irrevocable except by consent of all
4- 9 the parties.
4-10 9-9-66. (Index)
4-11 The referee shall be an attorney who is an active member
4-12 of the State Bar of Georgia. The referee shall be a
4-13 nonvoting member of the arbitration panel.
4-14 9-9-67. (Index)
4-15 (a) Every arbitration pursuant to this article shall be
4-16 conducted by three arbitrators, one of whom shall be
4-17 chosen by each of the parties prior to the execution of
4-18 the submission provided for in Code Section 9-9-65 and one
4-19 of whom shall be chosen by the arbitrators named in the
4-20 submission. The third arbitrator shall be chosen after the
4-21 parties sign the submission provided in Code Section
4-22 9-9-65 and before arbitration begins.
4-23 (b) If the arbitrators chosen by the parties are unable to
4-24 agree upon the third arbitrator as provided in subsection
4-25 (a) of this Code section, the judge authorizing the
4-26 arbitration and appointing the referee or the judge's
4-27 successor shall appoint the third arbitrator.
4-28 (c) In cases involving a medical malpractice claim where
4-29 there are multiple plaintiffs or defendants, there shall
4-30 be only one arbitrator chosen by each side. The plaintiff
4-31 parties shall have the right to choose one arbitrator and
4-32 the defendant parties shall have the right to choose one
4-33 arbitrator.
4-34 9-9-68. (Index)
4-35 If an arbitrator selected by one of the parties should
4-36 cease to serve for any reason, the party who chose the
4-37 arbitrator shall then choose another in his such
4-38 arbitrator's place. If the arbitrator chosen by the other
4-39 arbitrators shall cease to serve for any reason, the
4-40 arbitrators chosen by the parties shall choose another in
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LC 18 6484
5- 1 his such arbitrator's place. If the arbitrators chosen by
5- 2 the parties are unable to agree upon the third arbitrator,
5- 3 the third arbitrator shall be appointed as provided in
5- 4 subsection (b) of Code Section 9-9-67. An arbitrator
5- 5 chosen pursuant to this Code section shall have all the
5- 6 powers of the original arbitrator.
5- 7 9-9-69. (Index)
5- 8 (a) Before the arbitrators begin the arbitration, they
5- 9 shall be sworn by the referee to determine impartially the
5-10 matters submitted to them according to law and the justice
5-11 and equity of the case without favor or affection to
5-12 either party.
5-13 (b) Each arbitrator selected under this article shall sign
5-14 the following affidavit before the selection is effective
5-15 and before acting as an arbitrator:
5-16 State of Georgia
5-17 ________ County
5-18 I, ______________, first being duly sworn, make this
5-19 affidavit:
5-20 I, ______________, agree to serve as arbitrator in the
5-21 case of _________________ v. _________________________
5-22 and will decide any issue put before me without favor
5-23 or affection to any party and without prejudice for or
5-24 against any party. I will follow and apply the law as
5-25 given to me by the referee and will accept and abide
5-26 by all decisions of the referee. I also agree not to
5-27 discuss this case or any issue with any person except
5-28 when all other arbitrators and the referee are
5-29 present.
______________, L.S.
5-30 9-9-70. (Index)
5-31 When, upon the meeting of the arbitrators, either party is
5-32 not ready for trial, the referee may postpone the hearing
5-33 of the case to a future day, which day shall be as early
5-34 as may be consistent with the ends of justice, considering
5-35 all the circumstances of the case. If one party is not
5-36 ready for trial at the time appointed for the hearing of
5-37 the case and the party has previously required two or more
5-38 postponements of the trial, the referee shall determine
5-39 whether the arbitration panel shall nonetheless hear the
5-40 case or whether another postponement shall be granted, the
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LC 18 6484
6- 1 determination to be consistent with the ends of justice,
6- 2 considering all the circumstances of the case.
6- 3 9-9-71. (Index)
6- 4 After the arbitrators have commenced their investigations,
6- 5 they may adjourn from day to day or for a longer time, if
6- 6 the ends of justice require it, until their investigations
6- 7 are completed and they have made up their award. The
6- 8 arbitrators shall not meet or discuss the case or any
6- 9 issue except as a group and with the referee present.
6-10 9-9-72. (Index)
6-11 The parties to the arbitration may obtain discovery in the
6-12 same manner as provided by law for discovery in civil
6-13 cases in the superior courts.
6-14 9-9-73. (Index)
6-15 The referee shall have all the powers of the superior
6-16 courts to compel the attendance of witnesses before the
6-17 arbitrators, to compel witnesses to testify, and to issue
6-18 subpoenas requiring the attendance of witnesses at the
6-19 time and place of the meeting of the arbitrators.
6-20 Subpoenas shall be served in the manner provided by law
6-21 for the service of subpoenas in cases pending in the
6-22 superior courts. Witnesses shall be entitled to the same
6-23 compensation as witnesses in the superior courts, and the
6-24 compensation may be collected in the same manner.
6-25 9-9-74. (Index)
6-26 The referee shall have all the powers of the superior
6-27 courts to compel parties to produce books and all other
6-28 papers which may be deemed necessary and proper for the
6-29 investigation of the matters submitted to arbitration,
6-30 giving to the party, his or the party's agent, or his
6-31 attorney, from whom the production is required, such
6-32 notice as is required in the superior courts for the
6-33 production of papers.
6-34 9-9-75. (Index)
6-35 All persons who are competent as witnesses in the superior
6-36 courts shall be competent in all cases before the
6-37 arbitrators.
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LC 18 6484
7- 1 9-9-76. (Index)
7- 2 The examination of witnesses and the admission of evidence
7- 3 shall be governed by the rules applicable to the superior
7- 4 courts.
7- 5 9-9-77. (Index)
7- 6 The referee shall have power to administer oaths to
7- 7 witnesses and to administer all other oaths that may be
7- 8 necessary for carrying this article into full effect.
7- 9 9-9-78. (Index)
7-10 The arbitrators shall make a written finding on each of
7-11 the matters in controversy contained in the submission.
7-12 The arbitrators shall consider the evidence and decide the
7-13 issues of liability, amount of damages, and apportionment
7-14 of damages among the parties and make written findings
7-15 regarding such issues. Punitive damages may be awarded,
7-16 but the aggregate amount of punitive damages awarded in
7-17 arbitration against all parties may not exceed
7-18 $250,000.00. If the arbitrators shall fail to agree on any
7-19 finding, then any two of them may make the finding, which
7-20 shall have the same force and effect as if made by all.
7-21 9-9-79. (Index)
7-22 After the arbitrators have made their findings, the
7-23 referee shall furnish each of the parties with a copy
7-24 thereof. The original shall be entered on the minutes of
7-25 the court authorizing the arbitration; it shall have all
7-26 the force and effect of a judgment or decree of the court
7-27 and may be enforced in the same manner at any time after
7-28 the adjournment of the court. For the entering of the
7-29 findings upon the minutes of the court, the clerk shall be
7-30 entitled to the same fees allowed by law for the entering
7-31 of judgments in other cases, to be paid by the parties as
7-32 provided in the submission.
7-33 9-9-80. (Index)
7-34 (a) All findings of the arbitrators with respect to which
7-35 no application for a review thereof is filed in due time
7-36 shall be final and conclusive between the parties as to
7-37 all matters submitted to the arbitrators; but either party
7-38 to the dispute may, within 30 days from the date the
7-39 findings are entered upon the minutes of the court
7-40 authorizing the arbitration, appeal from the findings to
7-41 the superior court of the county in which the arbitration
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LC 18 6484
8- 1 was authorized. When an appeal is made, all findings shall
8- 2 be final and conclusive between the parties as to all
8- 3 matters submitted to the arbitrators only upon the final
8- 4 disposition of the appeal as provided by this article.
8- 5 (b) The party conceiving itself to be aggrieved may file
8- 6 an application in writing to the referee of the
8- 7 arbitration panel asking for an appeal from the findings,
8- 8 stating generally the grounds upon which the appeal is
8- 9 sought. In the event the appeal is filed as provided in
8-10 this Code section, the referee shall, within 30 days from
8-11 the filing of the same, cause a true copy of the
8-12 submission, findings, and all other parts of the record,
8-13 including a transcript of evidence and proceedings, to be
8-14 transmitted to the clerk of the superior court to which
8-15 the case is appealable. The case so appealed may thereupon
8-16 be brought on for a hearing before the superior court upon
8-17 such record by either party on ten days' written notice to
8-18 the other; subject, however, to an assignment of the same
8-19 for hearing by the court.
8-20 (c) The findings of fact made by the arbitrators shall, in
8-21 the absence of fraud, be conclusive but, upon the hearing,
8-22 the court shall set aside the findings if it is found
8-23 that:
8-24 (1) The findings were procured by fraud;
8-25 (2) There is no evidence to support the findings of fact
8-26 by the arbitrators; or
8-27 (3) The findings are contrary to law.
8-28 (d) No findings shall be set aside by the court upon any
8-29 grounds other than one or more of the grounds
8-30 above-stated. If not set aside upon one or more of the
8-31 stated grounds, the court shall affirm the findings so
8-32 appealed from. The limitation upon punitive damages
8-33 recoverable in arbitration shall apply in such hearing.
8-34 Upon the setting aside of any such findings, the court may
8-35 recommit the controversy to the arbitration panel for
8-36 further hearing or proceeding in conformity with the
8-37 judgment and opinion of the court or the court may enter
8-38 the proper judgment upon the findings, as the nature of
8-39 the case may demand. The decree of the court shall have
8-40 the same effect and all proceedings in relation thereto
8-41 shall thereafter be the same as though rendered in an
8-42 action heard and determined by the court.
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LC 18 6484
9- 1 (e) An appeal from the decision of the arbitration panel
9- 2 shall operate as a supersedeas and no defendant shall be
9- 3 required to make payment of the amount involved in the
9- 4 submission in the case so appealed until the question at
9- 5 issue therein has been fully determined in accordance with
9- 6 this article. The defendant may voluntarily make payment,
9- 7 however, prior to final disposition of the appeal.
9- 8 (f) Judgments or agreements pursuant to this article to
9- 9 pay or settle a medical malpractice claim against a person
9-10 authorized to practice medicine in this state shall be
9-11 reported to the Composite State Board of Medical Examiners
9-12 under the same conditions provided in Code Section
9-13 33-3-27.
9-14 9-9-81. (Index)
9-15 The arbitrators shall return in their award the costs of
9-16 the case, which they shall tax against the parties in
9-17 accordance with the submission loser in the case.
9-18 9-9-82. (Index)
9-19 The arbitrators and referee shall have such compensation
9-20 for their services as may be agreed upon by the parties in
9-21 the submission be paid $100.00 for each day or portion of
9-22 a day of service on the case.
9-23 9-9-83. (Index)
9-24 An arbitrator shall not be civilly or criminally liable
9-25 for libel, slander, or defamation of any of the parties to
9-26 the arbitration for any statement or action taken within
9-27 the official capacity of the arbitrator during the
9-28 arbitration."
SECTION 2.
9-29 All laws and parts of laws in conflict with this Act are
9-30 repealed.
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