September 17, 2025 • 39 mins
Georgia's landmark tort reform legislation is reshaping the state's healthcare litigation landscape, and this episode dives deep into the changes that every healthcare organization needs to understand. Join us as we recap legal expert Michelle Madison's webinar where she broke down the complex reforms into digestible insights that reveal how these changes will impact everything from jury awards to insurance premiums.
The conversation explores how the new law tackles inflated damage calculations by requiring courts to consider actual paid medical expenses rather than billed charges. Jason and Aaron unpack Michelle's masterful explanation of how "anchoring" practices, where attorneys suggest astronomical damage amounts early in trials, are now prohibited, preventing juries from being psychologically influenced by unreasonable figures.
Perhaps most significant for healthcare organizations is the reform allowing motions to dismiss before expensive discovery begins. As Michelle explains, this change alone could dramatically reduce defense costs by eliminating unnecessary litigation expenses for cases without merit.
While the full impact of these reforms won't be immediate, Michelle projects a three-to-five-year horizon before organizations see meaningful reductions in insurance premiums. For healthcare leaders navigating legal risks, this episode provides crucial context for understanding how Georgia's approach might become a model for other states facing similar challenges with outsized jury awards and rising insurance costs.
Watch the Michelle Madison Webinar in full on our YouTube Channel.
Curious about how data can strengthen your managed care strategies and support alternative payment models? Register for our upcoming September 30th webinar, "Decision Support Through Data Analytics," where experts Mike Scribner and Janey Marsen will demonstrate how to translate data into actionable insights for your organization.
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Transcript
Episode Transcript
Available transcripts are automatically generated. Complete accuracy is not guaranteed.
Jason (00:00):
Hey there folks, Welcome back to the podcast.
I'm here with Jason Crosby.
Jason, it is so great to seeyou, Aaron.
Aaron (00:07):
good to catch up again.
I'm excited about today's recap.
Jason (00:10):
Yeah, so about a week or so ago we had a wonderful
webinar with Michelle Madisonand we covered Now I know our
audience is kind of all over theworld, so this is going to be a
little hyper-specific toGeorgia, but I would argue this
is going to probably play out ina lot of other states.
(00:32):
So, for those who don't know,georgia had some major
legislation changing the waythat lawsuits work, aka tort
reform, and Michelle did a greatjob breaking down how this is
going to matter for those inGeorgia.
So even though if you don'tlive here in the great state of
(00:52):
Georgia, I think you'll findsome value in this because
you're going to start seeingother states.
I think mimic what Georgia did.
Aaron (01:00):
Yeah, you know, just to reiterate, she did such a great
Georgia did.
Yeah, you know, just toreiterate, she did such a great,
I just think a master's levelclass just on tort reform 101,
right, she did 50 minutes justjam packed of Michelle talking
about what some components are,but also the key changes.
And to your point, aaron, youknow all over the world she's
with you know, shout out to herfirm, bradley, a rant, bolton
(01:24):
Cummings, one of the largest inthe world.
So most people can reallybenefit from listening to her
webinar.
Jason (01:32):
Yeah, no doubt Michelle did an excellent job breaking it
down To your point.
I would actually say it's JDlevel.
I learned so much beyondmaster's level.
She crammed so much into thisone hour.
It was great.
So, folks, before we getstarted breaking this down, I
want to just point out don't,don't skip this one.
(01:52):
We have it up on our website,shplccom slash webinars.
You can watch the whole thing.
And yes, I said watch.
It's about an hour long.
There are slides that go withit and, man, there's just so
much crammed into it.
You're going to get great valueout of that one hour.
So, jason, let's kind of jumpright into it.
(02:13):
So take it away.
Aaron (02:15):
Yeah, I'll tell you so, Michelle.
Obviously, like we said, it's50 minutes of Michelle talking,
so she hops around, jumps ondifferent topics that that we'll
recap here.
Obviously, as she starts out,georgia has become notorious for
its outsized jury awards and inthe past has also been number
one in states to do business.
(02:36):
Well, one has kind of capturedthe other and we're starting to
see the impact to businesseswanting to actually come to
Georgia and Michelle hits onthat mainly obviously due to
higher insurance premiums andjust discouraging businesses
overall.
So this year the governor andlieutenant governor both made it
a priority to introduce newlegislation that wasn't focused
(03:00):
on imposing caps but rather rootcauses and in particular and
we'll hear this from Michellehow damages are calculated,
what's presented to juries.
You know she covers anchoringmotions to dismiss litigation,
finance.
The list goes on and on.
(03:21):
So she covers so much thathelps shed some light on those
jury costs and insurance costsand the impacts it has on
business recruitment.
Not to mention she's a hugeGeorgia fan.
There's a little dig she hasduring there that you'll catch
from Michelle.
She's a big Georgia fan, butlet's play an excerpt from her
right off the bat.
She goes into how damages aredetermined and the difference
(03:44):
between economic andnon-economic damages.
Michele (03:48):
So we focused on things that really looked at how did
we get to these numbers thatwere happening in the jury
verdicts?
And so they focused on thedamages side.
There's two different types ofdamages.
There's the economic damages,which is all right.
I've been injured and I havemedical expenses.
I had to go to rehab, I havetherapy.
(04:09):
I've lost my wages, lost myincome, I couldn't work during
that time period.
Those are direct expenses thatI'm incurring or through losses
that may have resulted from aninjury.
So let's say I'm in a caraccident and someone side swipes
me and I get injured and I haveto go to the hospital.
So I've automatically gotmedical expenses there, I've got
(04:30):
expenses for all my providers,I have to replace my car and I
couldn't work for six weeks.
So those are all directeconomic damages that I
sustained as a result of someoneelse's negligence in side
swiping the car.
Non-economic damages are thingslike physical and emotional
pain, discomfort, anxiety,distress, so the types of things
(04:51):
that you feel like they're moreintangible but they're taking
away from someone's enjoyment oflife or companionship with
others, and so those are morenon-economic and it's harder to
put a dollar amount on anon-economic damage.
So economic damages I can say,hey, I get paid a thousand bucks
a week and I couldn't work forsix weeks.
Here are my damages on that.
Or the car repair costs twohundred thousand or two thousand
(05:15):
dollars, and so here are thedamages on that.
Those are easier to quantify.
Non-economic damages have notbeen easy.
So one of the areas that wefocused on were these economic
damages.
So if I go to the doctor and itcosts $150,000 for my surgery
and the hospital visit and myrehab and getting home and
having home therapy, those arehealthcare expenses that I've
(05:36):
incurred, right, well,historically, there were times
when a plaintiff's attorneywould take the bills and instead
of saying, well, the insurancecompany paid $150,000 for the
surgery and the rehab and thehome health, they would say,
well, the hospital billed$275,000 for the surgery and
they billed, you know, $100,000for the rehab and the home
(06:00):
health.
Nurse was $50,000.
And we all know, as people onthis call who work in healthcare
, health nurse was $50,000.
And we all know, as people onthis call who work in healthcare
, what we bill and what ourcharges are are not what we
bring home.
So we weren't paid $100,000 forhome health or $50,000 for home
health and $100,000 for therapywe were paid probably $20,000,
maybe $15,000.
So the government said let'sreally look at what your actual
(06:22):
medical damages are.
Let's look at those realmedical expenses of what was
actually paid.
And we'll talk more in a fewminutes about litigation that
gets financed by other peoplethrough the lien business.
But the government and thecourts will now say, all right,
show me your invoices, let's seewhat was actually paid to the
provider, not what was charged.
(06:43):
And if for some reasonsomething wasn't paid, so like
if I go to a prospective paymentsystem hospital and the charges
are under a DRG method, they'regoing to estimate what the
insurance company would havepaid for that service.
Jason (06:57):
Oh man, I could just keep listening to that.
I might go back and watch therecording.
Yeah, and I was their life.
Aaron (07:07):
Well, even though we think, okay, we know what these
terms mean, she just does anexcellent job of reminding us
how courts now can consideractual paid medical expenses
versus just billed charges.
I thought that was just such anenlightening point in
healthcare, where you used tobill charges, right?
Well, she highlights that inthis reference there.
Jason (07:27):
Well, so I'm going to put on my municipal hat here for a
second.
The same sort of thing happenswith cities, right, you have
these attorneys who come in andthey just see a big pile of cash
, and this is obviouslyhappening in healthcare too.
So I like the idea of this,preventing attorneys from doing
(07:48):
the anchoring where you knowthey come in and they're like
this is $50 million worth ofdamages here without it really
being substantiated.
So I think this is a greatchange, for those who are now
facing down a jury with the ideaof 50 million in their mind
can't do that anymore at leastin our state.
Aaron (08:08):
That's right.
That's right and very wellexplained by Michelle.
And when I found she did a nicepivot, again helping us define
what these things actually mean.
Right, we hear these terms.
Well, what do they actuallymean and how are they impacted
by the legislation?
This next point she hit onnon-economic damages in
(08:28):
anchoring Basically to yourpoint Erin the pain and
suffering, the loss of enjoyment, which she again referenced
Georgia football's nationalchampionship.
Good job, michelle.
But she did a good job ofdefining okay, guys, this is
what anchoring is and how it'simpacted.
Let's, let's take a listen.
Michele (08:46):
One of the focuses of this tort reform law is to
prevent that from happening, toprevent the attorney from saying
in the beginning of the trialyou know, my client did X, y, z,
monday through Sunday and theylove this and they love that and
showing pictures of all theirfamily and everything that they
did, and then saying'll never beable to do that again and you
can never pay them enough to beable to do it.
(09:07):
$300 million won't make them.
Well, you can't do that anymore.
Because now you've got to waituntil after the close of
evidence to be able torationally relate your request
for what you think the damagesare to something that is
reasonable, related to theactual economic and non-economic
damages that would have beensustained by this individual.
And if you say something inopening that runs afoul of it
(09:31):
not being rationally related,you could get in trouble with
the courts.
But let's say that you havereal numbers.
Let's say that you can say Iknow my client has $300,000 in
medical expenses and we knowthat they had to go through six
weeks of being off work and weknow their damages are this much
.
That's a rationally relatednumber.
But you can't change thatnumber when you get to closing
(09:54):
and say well, they had so manyhundred thousand dollars in
actual damages that theyactually took out of pocket or
had a loss of wages.
Now that's worth 50 milliondollars in closing arguments.
You can't do that either.
So it's called anchoring, andanchoring is where the
plaintiff's attorney anchors thejury's mind on a number that is
not reasonable nor rationallyrelated to the actual damages
(10:16):
that were sustained by thatindividual.
We had a case gosh, it wasprobably six months ago, seven
months ago in Southeast Georgia,so it was before this law went
into effect and the plaintiff'sattorney's opening statement was
this is a $37 million case.
And I will tell you that, forwhatever reason, there were lots
(10:38):
of people in the courtroom thatday and I don't know if it was
because the press was followingthe case or why, but it hit
social media so quickly that Iwas getting text messages like
every 10 minutes from differentphysicians saying how can you
have a $37 million?
And it was just what theplaintiff's attorney said in
their opening statement.
At the end of the day, theynever proved $37 million in
(11:01):
damages, so they could not dothat today with this new law.
The new law is to say you haveto provide evidence of the
damages sustained.
And if you're going to throwout a number to encapsulate
those non-economic damages thatwe can't show an invoice for, it
has to be rationally related tothe actual damages that are
(11:22):
being sustained by theindividual to the actual damages
that are being sustained by theindividual.
Aaron (11:30):
So, as you heard there, Erin, she did a good job again
of saying, okay, let's separatethe non-economic from the
economic and define what thesethings are.
So another good job Michelledid there.
Jason (11:35):
Yeah no, that's again.
I think this is really greatreform.
Again from a businessstandpoint, certainly from a
healthcare standpoint, this isgoing to position organizations
in a better place when it doescome to a legitimate lawsuit.
Aaron (11:55):
Yeah, yeah, very good, yeah, yeah.
And then she again pivoted toanother topic which I was not at
all familiar with and, quitehonestly, not sure I'm not
saying that correct bifurcatedtrials, and she just did a great
job of reminding us what thatis and how that impacts us Right
?
So basically, the phasedapproach to trials and trial
(12:19):
strategy overall.
Let's, let's, take a listen tothis.
It's about a two minute cliphere.
Michele (12:25):
And so the first phase is just to decide is there any
fault here?
Right Is did anybody doanything wrong or negligent that
someone should pay.
Not talking about money we'renot talking about what happened
from a non-economic perspective,just talking about negligence.
And then if the answer is yes,someone was negligent, then you
go into a second part.
(12:45):
Now the part that's a littleweird about this is you have the
same judge and jury, so they'regoing to have some information,
but the jury instruction shouldfocus the jury that now you're
only deciding on damages basedupon the evidence that's
submitted related to damages,not large numbers that are
thrown out for anchoring.
And then let's say the jurysays, yes, the hospital's
(13:06):
negligent and yes, we're goingto give damages.
And let's say that they givedamages of $3 million.
There is a potential for a thirdphase in this bifurcated trial
where the plaintiff could comeback and say all right, somebody
should have settled with methree years ago, I shouldn't
have had to bring this trial.
And so I want my attorney'sfees.
I want the litigation costbecause the hospital was wrong
(13:27):
in keeping this trial going.
So now I'm going to ask forpunitive damages or attorney's
fees related to this trial.
That normally goes before thejudge, not necessarily a jury.
Attorney's fees have to bedetermined if they're reasonable
, so that usually goes beforethe judge.
But that's the third phase.
It doesn't sound like it's allthat different when you say oh
(13:49):
well, you still have to try thenegligence, you have to try the
damages.
But the jury instructions ofwhat they're deciding in two
different trials and changingthe determination of what
they're going to look at shouldimpact the damage side.
Plus that in combination withthey can't anchor anymore.
Aaron (14:06):
So we heard there again just the trial strategy, as she
put it, aaron, versus hearing toyour point.
You started this off by how youwould hear the emotional damage
, part of damages.
Well, now that's sort ofsegmented to where you're
hearing it in phases right.
Jason (14:24):
To borrow a phrase, just the facts, ma'am, I do.
I think this is fair, right.
The facts, ma'am, I, I do.
I think this is fair, right, I.
I have been injured in anaccident before and it ended up
going to court, was settled outof court ultimately.
But having having been there,I've also served as a juror in
in a court battle, and havingthis bifurcation for these sort
(14:47):
of things I think is fair,because if we're looking at it
from a non-emotional, these arethe facts and just the facts.
That's actually how youdetermine fairness.
I know someone who has gonethrough pain and suffering.
Again, I was in a car accident.
I had to sue someone.
I don't recommend it.
It wasn't fun.
(15:09):
But going through that processand what would have been
actually fair would have beenthis sort of approach.
We see this all the time in likea murder trial, where there's a
jury that stood up to determinesomebody is guilty of murder,
but then the sentencing phase ishandled by a different jury,
and they do that not in allstates and some states, so it's
(15:31):
not a totally foreign concept,but I think it is an entirely
new concept, as I can find, fordamage awarding in these kind of
civil litigation.
So I think this is a greatchange and time will bear it out
as to how effective this is,but I think we're going to reach
more fair settlements, notthese huge giant awards that as
to how effective this is, but Ithink we're going to reach more
fair settlements, not these hugegiant awards that okay, yeah,
(15:54):
you have a mother or a personwho's crying and it tugs on the
heartstrings of the jury and sothey are.
Oh, they deserve $25 million orwhatever.
Hopefully, those sort of awards.
It's still fair for the victimsof um, you know, whatever
happened here, but it's notpunishing necessarily to to
(16:16):
those that are at fault.
Aaron (16:18):
So, you know, I I think this is going to bring some
fairness to the process yeah,yeah, I agree, it kind of takes
that human emotion andcompartmentalizes it during the
process.
And uh, yeah, to your point.
I found it interesting shementioned it's actually the same
judge and jury, but they breakit down to allow that fairness
to take place.
So interesting, yeah,separating it.
Jason (16:40):
Yeah, and I want to be clear about that.
And in Georgia this bifurcationis the process is separated,
but it's still the same peopleinvolved, so you don't have to
reeduceducate, unlike some ofthe criminals.
Bifurcation where there is aseparate jury that stood up.
In this case it's all the same.
Aaron (16:57):
Interesting approach, yeah.
So she continued down the pathof something that's important
for everybody here to hear abouthealth care costs, the impact
of cost from tort reform and shepivoted over to attorney fees.
So let's take a listen hereabout another two-minute clip
from Michelle.
Michele (17:16):
On the attorney's fees.
This is going to eliminatebeing able to capture attorney's
fees twice.
So you know, you see thebillboards and you see the buses
and you live down in near theChatham area, if you get off on
516 and go south, there's like27 billboards that have
plaintiff's attorneys on them.
So as you look at that, a lotof times those attorneys have
(17:41):
contracts that say we'll take 40, you don't pay unless we
recover for you, and we'll take40% or 30%, but 40% of your
settlement proceeds.
So if we don't win you don'tpay, but if we win then you pay.
And so the court is trying toclose the loophole where let's
say I've got a case and I'm aplaintiff's attorney and I'm
(18:02):
going to get 40% of whatevercomes out right.
So I try the case and we win,and we win big.
So let's say we win $10 million, so I'm going to get 40% of $10
million but me attorney's feesbecause they were litigious in
not cooperating.
So now they go back and say,hey, my attorney's fees should
(18:39):
be paid.
So now they're getting their 40percent plus fees.
So that's out the door.
Now you're going to get paidonce, not twice, if you're a
plaintiff's attorney, and andit's going to require for it to
be a reasonable fee.
If you have a contingent feeagreement, it's not supposed to
be admissible as showing thatyes, that's a reasonable amount.
They're actually going to lookat how many hours did you spend,
(19:01):
what was your hourly rate, whatwere your expenses on the trial
, and really try to determinewhat is a reasonable amount for
attorneys to get paid.
Aaron (19:15):
So, erin, to one of your previous points.
You know, michelle justrecapped how attorney's fees are
now limited to a singlereasonable payment and trying to
close loopholes that allowedfor that.
As she called it, doublerecovery.
Right, you get paid x becauseyour client was paid x, but then
you're going to go seekadditional fees.
Well, let's close thoseloopholes there, and that was a
(19:37):
good job recapping that bymichelle yeah, you know.
Jason (19:41):
It kind of reminds me of a of a joke.
Uh, a 45 year old attorney diesand goes to heaven and he's
standing there at the gates andhe tells saint peter, I was only
45 years old.
Why, why am I here?
And saint peter, he looks athis, his book of life and he
goes well, according to yourbilling sheets, you're 97 well
(20:08):
done so hopefully this this willcurb some of that sort of
behavior.
Aaron (20:14):
Well, you know she hit on that being such a big impact to
overall costs in and of itself,so closing loophole always
important.
Then we sort of pivoted rightafter that to, as she termed it,
voluntary dismissal and againanother piece that she
emphasizes having a huge impacton overall defense costs.
(20:38):
Let's take a listen here.
Michele (20:41):
So it used to be that when you had a lawsuit and you
had to answer the lawsuit, youwould answer the lawsuit and you
would go to you're the defense,you're answering the lawsuit.
You prepare for a lawsuit andsometimes it takes years.
So that case down in SouthwestGeorgia was on for what?
Seven or 10 years, with somecrazy amount of time where that
(21:03):
case would kept going.
And some of these cases do takethat long.
And so you've answered thelawsuit, you've gone through all
this discovery, you've done allthese depositions.
You get to the actual trial,you've picked a jury and then
the plaintiff says you know, I'mnot sure I really like that
jury, and they do a voluntarydismissal at trial and now they
can come back and refile.
(21:23):
And so the court said this istoo much, this is creating too
much cost in the litigationsystem.
So if you're going to do avoluntary dismissal of your case
, you have to do it within 60days after receipt of the answer
.
So if I'm a hospital and I getsued, I have to answer that
lawsuit in 30 days, right?
So the plaintiff's attorneywould need to decide in those
(21:48):
next 60 days.
Do they think they really havea good case and are they going
to proceed with it or are theygoing to do a voluntary
dismissal and try to reworktheir case?
So this is important from acost-saving perspective in the
litigation system.
So voluntary dismissals caneither be 60 days after the
answer now or by mutualagreement of both parties.
Aaron (22:10):
So, Erin, we heard Michelle there mention how this
voluntary dismissal, thestreamlining of it, helps avoid
plaintiffs dismissing a casejust to refile it for a whole
new jury or more favorablejurisdiction after defense costs
has already been incurred.
So another emphasis in thereform legislation to help
(22:33):
reduce costs.
I think another pivotal pointMichelle brought up there.
Yeah.
Jason (22:37):
Yeah, it almost leans on the concept of double jeopardy,
and I'm not talking the TV show.
It does stop some of the courtshopping that's gone on or even
jury shopping that has happened.
I haven't experienced it myself, but I've heard stories.
So again, I think this isreasonable reform.
Aaron (23:01):
So now the next point.
Right after this, she termed itthe big one.
According to Michelle, thisobviously was something.
When she says that and she's 30minutes in, it catches your
attention right, but this isregarding a motion to dismiss.
Let's listen to Michelle here.
Michele (23:21):
This is the biggie.
So the motion to dismiss.
So, right now, if I'm thehospital and I get sued in my
example right, and I have toanswer within 30 days, if I
think this case has no merit andthere is no reason for this
case to be brought, I want tofile a motion to dismiss.
Well, in order to file a motionto dismiss, legally, I'm
supposed to file that with myanswer, like it needs to be
(23:41):
filed, with the answer.
If I supposed to file that withmy answer, like it needs to be
filed, with the answer, if Idon't file it with the answer,
my motion to dismiss is likelygone right.
Well, the problem is is that bythe time I file my answer and I
have to do my motion to dismiss, at that time I've got to do
discovery, and so, while themotion to dismiss might be
pending, there's a whole bunchof discovery going on, there's
depositions being taken, there'sdocuments I'm having to produce
(24:03):
, lots of litigation expensesongoing, and yet I might get my
motion to dismiss and none ofthat would have been necessary
and all of this cost that I'veincurred would have been for
nothing.
And so they've changed it nowwhere, instead of filing an
answer with my motion to dismiss.
I can now just file my motionto dismiss and say look, court,
(24:23):
I don't think that this case hasmerit and I think you should
just dismiss it.
And so the court has to listen.
Look at the motion to dismiss.
Everything gets stayed in themeantime.
So no depositions, no discovery, no interrogatories, no
production of documents.
I'm not spending money todefend myself because I don't
(24:45):
think it's a real lawsuit thatshould go to court.
And so then, once the judge sayswe agree, there's no merit
behind the case, we're going todismiss it.
I'm done Now if the courtdisagrees and says you know,
there's an issue of fact ofwhether or not your nurse should
have been the one counting thesponges, so we're going to let
it go through.
Fifteen days after the judgemakes that order, I then have to
(25:06):
file my answer denyingliability.
Right, so the other time that.
So the discovery has stayed aslong as the motion to dismiss is
ongoing.
The court is supposed to rule amotion to dismiss within 90
days.
But if they don't, then theplaintiff's attorney can
petition for the court, filing amotion asking them to go ahead
and either rule on the motion orallow discovery to commence.
(25:29):
So discovery stops until thejudge actually says all right,
I'm ruling on the motion todismiss and now you have to
answer.
Or discovery could commence ifthe other court, if the other
party asked for it to, after the90 days following the briefing
of the motions.
Aaron (25:47):
So, erin, not to get lost in these weeds, because I would
get very lost trying to talk tothis, but Michelle's recapping
of voluntary dismissals and thetime frame of how they must
occur within 60 days of adefendant's answer, to help
streamline litigation, reducecost, etc.
Jason (26:05):
Just another point I wasn't aware of to help
emphasize lowering costs, yeah,yeah, well, and I think too that
the motions to dismiss beforediscovery is huge, because
discovery can be a huge cost ofany lawsuit, you know, and it
can, it's the most time.
It's the thing that delays mosttrials happening is discovery.
(26:29):
And yeah, no, I think theability to file a motion to
dismiss even before discoveryhas happened is like she said.
It's one of the biggest pieceshere and you can prove it
doesn't have merit before you gothrough all your pain and
suffering as a defendant in alawsuit and you can get the case
to go away.
(26:49):
That's big.
So, again, time will bear outhow this helps, but I think it's
going to help far more than ithurts.
Aaron (26:58):
Well, just the rework, the cost.
I mean we've talked about leanand streamline and before right.
Well, good Lord, this seemslike right up the alley of
reducing rework by folks andobviously their cost.
But good recap there ConsumerProtection Act, this along the
(27:26):
lines of litigation financing,which was another interesting
point I got to say I wasn'tfamiliar with once you dove into
the weeds there.
Let's take a listen.
Michele (27:30):
The government was very concerned and when I say the
government, the state was veryconcerned that there were third
parties out there that werelooking for plaintiffs to then
fund their lawsuits and thentake a percentage of the
settlement amount or the juryverdict amount so that it's like
a profitable business.
Right, I'm going to like a bank, I'm going to loan you money
(27:51):
and then, when the settlementcomes through, I'm going to get
a percentage of whatever yoursettlement is and I could
possibly make more money thanwhat I loaned you in June.
And the government wasconcerned that one of the
reasons that Georgia was havingsuch increases in litigation and
so many cases being brought tothe court system was because
people were literally funding it, and because they were funding
(28:13):
it, they were pushing it to getall the way to the courts so
they could get their best juryverdict.
They could possibly get thatties up a lot of money, a lot of
court system time and a lot ofprocesses and funds for both
parties on both sides.
But if I'm a plaintiff andsomeone's funding it for me, I
don't have anything to lose.
So the governments also did somereviews and they believe that a
(28:37):
lot of the entities that werebeing funded to then fund
litigation were being funded byforeign governments, and so they
passed this law that when youhave litigation financing, these
individual companies orentities must now register to do
business in the state ofGeorgia.
So before they just came in,they would go to wherever they
(28:57):
went to find plaintiffs, theywould give them funding for
their lawsuit and take apercentage of whatever was
recovered once the jury gavetheir verdict or if there was a
big settlement or whatever itwas.
Aaron (29:08):
So, erin, you know she recapped their litigation
financing changes that actuallykick in on 1-1-26.
And what I found interesting,what I wasn't aware of, she
referenced how companies nowmust register in Georgia because
previously many were foreignowned.
Jason (29:25):
I thought what an interesting point yeah, that was
news to me.
That was fascinating.
Aaron (29:31):
Yeah, and trying to restrict them from taking more
than an equal share ofsettlements and to influence
case decisions.
And also Michelle, for thosethat want to go see it she
listed it out in her webinar hada top 10 list of things that a
financier cannot do now, so tome that was a top three sort of
(29:55):
moment that I wasn't even awareof.
Jason (29:58):
Yeah yeah, no doubt this will again lots of positive
change.
Uh, in this tort reform, yeah,it wasn't perfect, don't don't
get me wrong.
There are things that I wantedto see in this tort reform that
we didn't get, but this is agood one.
A good one because I didn'teven know this was a problem.
Aaron (30:14):
I didn't even know it was a problem it kind of is
obviously a problem, it's, it's,I didn't even worry.
You can almost outsource thatlitigation financing to someone
kind of like we do with billingcollection companies,
nonetheless to a foreign ownedgovernment entity Like wow,
hello, hello, anyways, anyways,and to our lasting point, while
(30:37):
you and I can talk about thelegal cost impact and respective
timelines from this legislation, michelle, as usual, does a
much better job than you and Icould do, so let's let Michelle
wrap this up.
Michele (30:49):
Yeah, I actually think that it's going to take a little
time, right, Because there arelots of.
It's going to take a while forthese cases to move through the
courts and we'll see whether ornot the bifurcated trial cuts
down on the amount of thedamages that are actually being
awarded and we get morereasonable.
I think it's between a three toa five year horizon before the
(31:09):
savings can actually beevaluated so that you could have
knowledge of what the costsavings will be.
I think the fact that you canfile a motion to dismiss now
without going through all thatdiscovery, that should start
impacting insurance premiumsfaster, because the cost for
litigation should be less forthe defendants.
(31:29):
So when we go to renewinsurance next year, I don't
think we're going to see theinsurance premiums go down.
My hope would be that they won'tgo up as much as they have been
historically, and then the nextyear I'd like to see it stay
the same and start to then startratcheting down, because the
legal cost on these trialstrategies should be less.
(31:50):
Now we should not be havingdouble attorney's fees paid out.
We should not be incurringdiscovery.
If we have a motion to dismisson, frivolous litigation is
there, we should not see as muchfrivolous litigation if it's
being funded by third partiesthat now have to register with
the state as a business and ifthey're responsible for
frivolous litigation, they'renot going to fund or hopefully
they won't fund frivolouslitigation.
(32:11):
So I think it's a three to fiveyear horizon.
I have not asked the insurancecompanies yet to see where we
are, Cause I think everybody'sgot you know their premiums roll
at different times.
But this isn't a oh 2026,everything's going to be stable
in Georgia.
We're talking 2032.
(32:32):
We're still looking at okay,have the costs come down and
what's the jury verdict lookingat now?
Aaron (32:38):
So, Erin, again, Michelle did a great job of just
emphasizing and recapping thechef's kiss.
Jason (32:44):
Yes, chef's kiss.
Aaron (32:46):
Just the cost impact the streamlining of all these bits
and pieces of this legislationwill have.
Jason (32:54):
Yeah, well and honestly, we are excited about this, but
it's one of those things it'sgoing to take a little bit of
time to trickle through beforewe see the full impact of this.
Uh, what did she say?
Three to five years, really,before we have any true insight?
Uh, so I do not expect Georgiato start tinkering with this
(33:17):
anytime soon, unless there'ssome kind of glaring issue that
arises.
I think they're going to letthis simmer and stew for the
next three to five years beforethey make any substantive
changes to this reform.
So, going forward, I think allthe other states, particularly
those that are really strugglingwith these high awards, they're
(33:37):
going to be looking to Georgiato see how it plays out here.
So stay tuned.
It's not going to come to younext year.
It'll probably come to you in acouple of years, that's true,
and we'll have Michelle back onfor that no doubt, and it's
important to note.
I think too, this only appliesto state awards in the state
courts.
If there is any sort of federallawsuit or something like that,
(34:00):
the federal rules still apply.
I don't see those changinganytime soon.
Good point.
Aaron (34:05):
Good point.
So about a week or two afterthis episode launches our next
event, I really want tohighlight it.
It's a webinar on September30th, a live webinar titled
Decision Support Through DataAnalytics, which Aaron is a
proud data geek member of thatsquad, yeah.
Jason (34:25):
I am Data data data.
Aaron (34:27):
Data data.
But this is a repeat livepresentation, actually, that
Mike Scribner and Janey Marsandid just this August in Atlanta
for the Georgia ASC Association,where they'll take the data but
put a lot of narrative andstory behind it.
Right, like you can do anythingwith a data book what do you do
(34:48):
with it, how do you use it.
So they'll highlight how tostrengthen your managed care
strategies, what to pull fromyour system, support your APMs
all that good stuff.
So take a listen, or actuallytake a take a seat, because
they're going to have some goodslides to go over and then you
and I my friend get to dive intoit.
On the recap after the webinarthat's right.
Jason (35:10):
So on our website, shplc.
com slash webinars, there willbe a link there where you can
register for the free webinar soyou can watch it live.
And of course, if you can'tmake it at that time, no sweat,
we will have a recording postedwithin a couple of days of the
webinar going up.
And certainly, if you don'twant to go to our website, you
can contact us on our socialmedia channels.
(35:32):
We will have links there.
Aaron (35:35):
Well, another great recap , aaron, you and I will be back
on in a couple of weeks or a fewweeks here, but until then,
hope everybody has a greatSeptember and a great rest of
your week.
Jason (35:49):
And that's it for this episode of Beyond the
Stethoscope Vital Conversationswith SHP.
I'm Aaron Henry.
Aaron (35:55):
I'm Jason Crosby, still talking to the mic as if it was
my full-time job.
Jason (36:00):
This podcast is a production of Strategic
Healthcare Partners, wherehealthcare meets data and still
somehow ends up in a podcast.
Our executive producers areMike.
Aaron (36:09):
Skrimner and John Crew, who keep this train on the
tracks even when Aaron and I tryto derail it.
Jason (36:14):
We're doing our best.
Speaking of doing our best, oureditor, Naila Weave, deserves
an award for turning our verbalchaos into something somewhat
coherent Kudos for sure, let'salso give a shout out to our
social media channel by JeremyMiller at Boost by Design.
Aaron (36:30):
So if you liked it, give him some applause, if not, let's
blame Aaron.
Jason (36:34):
It wouldn't be the first time Our transcription is by a
robot, but it's been lightlymassaged into readable English
by your two hosts, both of whomare supposedly human.
Aaron (36:45):
Debatable and if you really like the transcription,
dig through our podcast archiveor check out our services at
shplccom slash podcast.
Go ahead, click around, havesome fun while you're at it.
Jason (36:56):
We'll wait for you and also come find us on social
media.
We're on Facebook and LinkedIn.
You can send us a question,leave a comment, troll us a
little bit or, more importantly,tell Jason that his dad jokes
need some work.
That one stings a little bit.
Aaron (37:11):
Thanks for hanging with us everybody.
We'll be back soon in yourfeeds.
Jason (37:15):
Assuming no one pulls the plug or trips over, for that
matter.
But until then, stay curious,stay healthy and keep asking the
vital questions, Maybe stayhydrated.
Aaron (37:26):
Just a thought.
Bye y'all.
Nyla (37:33):
Hey, this is Nyla, the podcast editor of this show.
So the other day I was on aZoom call with Jason and Aaron
and Jeremy, who does the SEO andsocial media for this show, and
on this Zoom call I told themthis joke and nobody laughed,
and so I guess I'm just not evenremotely funny.
(37:53):
Hmm.
Hey there folks, Welcome back to the podcast.
I'm here with Jason Crosby.
Jason, it is so great to seeyou, Aaron.
Aaron (00:07):
good to catch up again.
I'm excited about today's recap.
Jason (00:10):
Yeah, so about a week or so ago we had a wonderful
webinar with Michelle Madisonand we covered Now I know our
audience is kind of all over theworld, so this is going to be a
little hyper-specific toGeorgia, but I would argue this
is going to probably play out ina lot of other states.
(00:32):
So, for those who don't know,georgia had some major
legislation changing the waythat lawsuits work, aka tort
reform, and Michelle did a greatjob breaking down how this is
going to matter for those inGeorgia.
So even though if you don'tlive here in the great state of
(00:52):
Georgia, I think you'll findsome value in this because
you're going to start seeingother states.
I think mimic what Georgia did.
Aaron (01:00):
Yeah, you know, just to reiterate, she did such a great
Georgia did.
Yeah, you know, just toreiterate, she did such a great,
I just think a master's levelclass just on tort reform 101,
right, she did 50 minutes justjam packed of Michelle talking
about what some components are,but also the key changes.
And to your point, aaron, youknow all over the world she's
with you know, shout out to herfirm, bradley, a rant, bolton
(01:24):
Cummings, one of the largest inthe world.
So most people can reallybenefit from listening to her
webinar.
Jason (01:32):
Yeah, no doubt Michelle did an excellent job breaking it
down To your point.
I would actually say it's JDlevel.
I learned so much beyondmaster's level.
She crammed so much into thisone hour.
It was great.
So, folks, before we getstarted breaking this down, I
want to just point out don't,don't skip this one.
(01:52):
We have it up on our website,shplccom slash webinars.
You can watch the whole thing.
And yes, I said watch.
It's about an hour long.
There are slides that go withit and, man, there's just so
much crammed into it.
You're going to get great valueout of that one hour.
So, jason, let's kind of jumpright into it.
(02:13):
So take it away.
Aaron (02:15):
Yeah, I'll tell you so, Michelle.
Obviously, like we said, it's50 minutes of Michelle talking,
so she hops around, jumps ondifferent topics that that we'll
recap here.
Obviously, as she starts out,georgia has become notorious for
its outsized jury awards and inthe past has also been number
one in states to do business.
(02:36):
Well, one has kind of capturedthe other and we're starting to
see the impact to businesseswanting to actually come to
Georgia and Michelle hits onthat mainly obviously due to
higher insurance premiums andjust discouraging businesses
overall.
So this year the governor andlieutenant governor both made it
a priority to introduce newlegislation that wasn't focused
(03:00):
on imposing caps but rather rootcauses and in particular and
we'll hear this from Michellehow damages are calculated,
what's presented to juries.
You know she covers anchoringmotions to dismiss litigation,
finance.
The list goes on and on.
(03:21):
So she covers so much thathelps shed some light on those
jury costs and insurance costsand the impacts it has on
business recruitment.
Not to mention she's a hugeGeorgia fan.
There's a little dig she hasduring there that you'll catch
from Michelle.
She's a big Georgia fan, butlet's play an excerpt from her
right off the bat.
She goes into how damages aredetermined and the difference
(03:44):
between economic andnon-economic damages.
Michele (03:48):
So we focused on things that really looked at how did
we get to these numbers thatwere happening in the jury
verdicts?
And so they focused on thedamages side.
There's two different types ofdamages.
There's the economic damages,which is all right.
I've been injured and I havemedical expenses.
I had to go to rehab, I havetherapy.
(04:09):
I've lost my wages, lost myincome, I couldn't work during
that time period.
Those are direct expenses thatI'm incurring or through losses
that may have resulted from aninjury.
So let's say I'm in a caraccident and someone side swipes
me and I get injured and I haveto go to the hospital.
So I've automatically gotmedical expenses there, I've got
(04:30):
expenses for all my providers,I have to replace my car and I
couldn't work for six weeks.
So those are all directeconomic damages that I
sustained as a result of someoneelse's negligence in side
swiping the car.
Non-economic damages are thingslike physical and emotional
pain, discomfort, anxiety,distress, so the types of things
(04:51):
that you feel like they're moreintangible but they're taking
away from someone's enjoyment oflife or companionship with
others, and so those are morenon-economic and it's harder to
put a dollar amount on anon-economic damage.
So economic damages I can say,hey, I get paid a thousand bucks
a week and I couldn't work forsix weeks.
Here are my damages on that.
Or the car repair costs twohundred thousand or two thousand
(05:15):
dollars, and so here are thedamages on that.
Those are easier to quantify.
Non-economic damages have notbeen easy.
So one of the areas that wefocused on were these economic
damages.
So if I go to the doctor and itcosts $150,000 for my surgery
and the hospital visit and myrehab and getting home and
having home therapy, those arehealthcare expenses that I've
(05:36):
incurred, right, well,historically, there were times
when a plaintiff's attorneywould take the bills and instead
of saying, well, the insurancecompany paid $150,000 for the
surgery and the rehab and thehome health, they would say,
well, the hospital billed$275,000 for the surgery and
they billed, you know, $100,000for the rehab and the home
(06:00):
health.
Nurse was $50,000.
And we all know, as people onthis call who work in healthcare
, health nurse was $50,000.
And we all know, as people onthis call who work in healthcare
, what we bill and what ourcharges are are not what we
bring home.
So we weren't paid $100,000 forhome health or $50,000 for home
health and $100,000 for therapywe were paid probably $20,000,
maybe $15,000.
So the government said let'sreally look at what your actual
(06:22):
medical damages are.
Let's look at those realmedical expenses of what was
actually paid.
And we'll talk more in a fewminutes about litigation that
gets financed by other peoplethrough the lien business.
But the government and thecourts will now say, all right,
show me your invoices, let's seewhat was actually paid to the
provider, not what was charged.
(06:43):
And if for some reasonsomething wasn't paid, so like
if I go to a prospective paymentsystem hospital and the charges
are under a DRG method, they'regoing to estimate what the
insurance company would havepaid for that service.
Jason (06:57):
Oh man, I could just keep listening to that.
I might go back and watch therecording.
Yeah, and I was their life.
Aaron (07:07):
Well, even though we think, okay, we know what these
terms mean, she just does anexcellent job of reminding us
how courts now can consideractual paid medical expenses
versus just billed charges.
I thought that was just such anenlightening point in
healthcare, where you used tobill charges, right?
Well, she highlights that inthis reference there.
Jason (07:27):
Well, so I'm going to put on my municipal hat here for a
second.
The same sort of thing happenswith cities, right, you have
these attorneys who come in andthey just see a big pile of cash
, and this is obviouslyhappening in healthcare too.
So I like the idea of this,preventing attorneys from doing
(07:48):
the anchoring where you knowthey come in and they're like
this is $50 million worth ofdamages here without it really
being substantiated.
So I think this is a greatchange, for those who are now
facing down a jury with the ideaof 50 million in their mind
can't do that anymore at leastin our state.
Aaron (08:08):
That's right.
That's right and very wellexplained by Michelle.
And when I found she did a nicepivot, again helping us define
what these things actually mean.
Right, we hear these terms.
Well, what do they actuallymean and how are they impacted
by the legislation?
This next point she hit onnon-economic damages in
(08:28):
anchoring Basically to yourpoint Erin the pain and
suffering, the loss of enjoyment, which she again referenced
Georgia football's nationalchampionship.
Good job, michelle.
But she did a good job ofdefining okay, guys, this is
what anchoring is and how it'simpacted.
Let's, let's take a listen.
Michele (08:46):
One of the focuses of this tort reform law is to
prevent that from happening, toprevent the attorney from saying
in the beginning of the trialyou know, my client did X, y, z,
monday through Sunday and theylove this and they love that and
showing pictures of all theirfamily and everything that they
did, and then saying'll never beable to do that again and you
can never pay them enough to beable to do it.
(09:07):
$300 million won't make them.
Well, you can't do that anymore.
Because now you've got to waituntil after the close of
evidence to be able torationally relate your request
for what you think the damagesare to something that is
reasonable, related to theactual economic and non-economic
damages that would have beensustained by this individual.
And if you say something inopening that runs afoul of it
(09:31):
not being rationally related,you could get in trouble with
the courts.
But let's say that you havereal numbers.
Let's say that you can say Iknow my client has $300,000 in
medical expenses and we knowthat they had to go through six
weeks of being off work and weknow their damages are this much
.
That's a rationally relatednumber.
But you can't change thatnumber when you get to closing
(09:54):
and say well, they had so manyhundred thousand dollars in
actual damages that theyactually took out of pocket or
had a loss of wages.
Now that's worth 50 milliondollars in closing arguments.
You can't do that either.
So it's called anchoring, andanchoring is where the
plaintiff's attorney anchors thejury's mind on a number that is
not reasonable nor rationallyrelated to the actual damages
(10:16):
that were sustained by thatindividual.
We had a case gosh, it wasprobably six months ago, seven
months ago in Southeast Georgia,so it was before this law went
into effect and the plaintiff'sattorney's opening statement was
this is a $37 million case.
And I will tell you that, forwhatever reason, there were lots
(10:38):
of people in the courtroom thatday and I don't know if it was
because the press was followingthe case or why, but it hit
social media so quickly that Iwas getting text messages like
every 10 minutes from differentphysicians saying how can you
have a $37 million?
And it was just what theplaintiff's attorney said in
their opening statement.
At the end of the day, theynever proved $37 million in
(11:01):
damages, so they could not dothat today with this new law.
The new law is to say you haveto provide evidence of the
damages sustained.
And if you're going to throwout a number to encapsulate
those non-economic damages thatwe can't show an invoice for, it
has to be rationally related tothe actual damages that are
(11:22):
being sustained by theindividual to the actual damages
that are being sustained by theindividual.
Aaron (11:30):
So, as you heard there, Erin, she did a good job again
of saying, okay, let's separatethe non-economic from the
economic and define what thesethings are.
So another good job Michelledid there.
Jason (11:35):
Yeah no, that's again.
I think this is really greatreform.
Again from a businessstandpoint, certainly from a
healthcare standpoint, this isgoing to position organizations
in a better place when it doescome to a legitimate lawsuit.
Aaron (11:55):
Yeah, yeah, very good, yeah, yeah.
And then she again pivoted toanother topic which I was not at
all familiar with and, quitehonestly, not sure I'm not
saying that correct bifurcatedtrials, and she just did a great
job of reminding us what thatis and how that impacts us Right
?
So basically, the phasedapproach to trials and trial
(12:19):
strategy overall.
Let's, let's, take a listen tothis.
It's about a two minute cliphere.
Michele (12:25):
And so the first phase is just to decide is there any
fault here?
Right Is did anybody doanything wrong or negligent that
someone should pay.
Not talking about money we'renot talking about what happened
from a non-economic perspective,just talking about negligence.
And then if the answer is yes,someone was negligent, then you
go into a second part.
(12:45):
Now the part that's a littleweird about this is you have the
same judge and jury, so they'regoing to have some information,
but the jury instruction shouldfocus the jury that now you're
only deciding on damages basedupon the evidence that's
submitted related to damages,not large numbers that are
thrown out for anchoring.
And then let's say the jurysays, yes, the hospital's
(13:06):
negligent and yes, we're goingto give damages.
And let's say that they givedamages of $3 million.
There is a potential for a thirdphase in this bifurcated trial
where the plaintiff could comeback and say all right, somebody
should have settled with methree years ago, I shouldn't
have had to bring this trial.
And so I want my attorney'sfees.
I want the litigation costbecause the hospital was wrong
(13:27):
in keeping this trial going.
So now I'm going to ask forpunitive damages or attorney's
fees related to this trial.
That normally goes before thejudge, not necessarily a jury.
Attorney's fees have to bedetermined if they're reasonable
, so that usually goes beforethe judge.
But that's the third phase.
It doesn't sound like it's allthat different when you say oh
(13:49):
well, you still have to try thenegligence, you have to try the
damages.
But the jury instructions ofwhat they're deciding in two
different trials and changingthe determination of what
they're going to look at shouldimpact the damage side.
Plus that in combination withthey can't anchor anymore.
Aaron (14:06):
So we heard there again just the trial strategy, as she
put it, aaron, versus hearing toyour point.
You started this off by how youwould hear the emotional damage
, part of damages.
Well, now that's sort ofsegmented to where you're
hearing it in phases right.
Jason (14:24):
To borrow a phrase, just the facts, ma'am, I do.
I think this is fair, right.
The facts, ma'am, I, I do.
I think this is fair, right, I.
I have been injured in anaccident before and it ended up
going to court, was settled outof court ultimately.
But having having been there,I've also served as a juror in
in a court battle, and havingthis bifurcation for these sort
(14:47):
of things I think is fair,because if we're looking at it
from a non-emotional, these arethe facts and just the facts.
That's actually how youdetermine fairness.
I know someone who has gonethrough pain and suffering.
Again, I was in a car accident.
I had to sue someone.
I don't recommend it.
It wasn't fun.
(15:09):
But going through that processand what would have been
actually fair would have beenthis sort of approach.
We see this all the time in likea murder trial, where there's a
jury that stood up to determinesomebody is guilty of murder,
but then the sentencing phase ishandled by a different jury,
and they do that not in allstates and some states, so it's
(15:31):
not a totally foreign concept,but I think it is an entirely
new concept, as I can find, fordamage awarding in these kind of
civil litigation.
So I think this is a greatchange and time will bear it out
as to how effective this is,but I think we're going to reach
more fair settlements, notthese huge giant awards that as
to how effective this is, but Ithink we're going to reach more
fair settlements, not these hugegiant awards that okay, yeah,
(15:54):
you have a mother or a personwho's crying and it tugs on the
heartstrings of the jury and sothey are.
Oh, they deserve $25 million orwhatever.
Hopefully, those sort of awards.
It's still fair for the victimsof um, you know, whatever
happened here, but it's notpunishing necessarily to to
(16:16):
those that are at fault.
Aaron (16:18):
So, you know, I I think this is going to bring some
fairness to the process yeah,yeah, I agree, it kind of takes
that human emotion andcompartmentalizes it during the
process.
And uh, yeah, to your point.
I found it interesting shementioned it's actually the same
judge and jury, but they breakit down to allow that fairness
to take place.
So interesting, yeah,separating it.
Jason (16:40):
Yeah, and I want to be clear about that.
And in Georgia this bifurcationis the process is separated,
but it's still the same peopleinvolved, so you don't have to
reeduceducate, unlike some ofthe criminals.
Bifurcation where there is aseparate jury that stood up.
In this case it's all the same.
Aaron (16:57):
Interesting approach, yeah.
So she continued down the pathof something that's important
for everybody here to hear abouthealth care costs, the impact
of cost from tort reform and shepivoted over to attorney fees.
So let's take a listen hereabout another two-minute clip
from Michelle.
Michele (17:16):
On the attorney's fees.
This is going to eliminatebeing able to capture attorney's
fees twice.
So you know, you see thebillboards and you see the buses
and you live down in near theChatham area, if you get off on
516 and go south, there's like27 billboards that have
plaintiff's attorneys on them.
So as you look at that, a lotof times those attorneys have
(17:41):
contracts that say we'll take 40, you don't pay unless we
recover for you, and we'll take40% or 30%, but 40% of your
settlement proceeds.
So if we don't win you don'tpay, but if we win then you pay.
And so the court is trying toclose the loophole where let's
say I've got a case and I'm aplaintiff's attorney and I'm
(18:02):
going to get 40% of whatevercomes out right.
So I try the case and we win,and we win big.
So let's say we win $10 million, so I'm going to get 40% of $10
million but me attorney's feesbecause they were litigious in
not cooperating.
So now they go back and say,hey, my attorney's fees should
(18:39):
be paid.
So now they're getting their 40percent plus fees.
So that's out the door.
Now you're going to get paidonce, not twice, if you're a
plaintiff's attorney, and andit's going to require for it to
be a reasonable fee.
If you have a contingent feeagreement, it's not supposed to
be admissible as showing thatyes, that's a reasonable amount.
They're actually going to lookat how many hours did you spend,
(19:01):
what was your hourly rate, whatwere your expenses on the trial
, and really try to determinewhat is a reasonable amount for
attorneys to get paid.
Aaron (19:15):
So, erin, to one of your previous points.
You know, michelle justrecapped how attorney's fees are
now limited to a singlereasonable payment and trying to
close loopholes that allowedfor that.
As she called it, doublerecovery.
Right, you get paid x becauseyour client was paid x, but then
you're going to go seekadditional fees.
Well, let's close thoseloopholes there, and that was a
(19:37):
good job recapping that bymichelle yeah, you know.
Jason (19:41):
It kind of reminds me of a of a joke.
Uh, a 45 year old attorney diesand goes to heaven and he's
standing there at the gates andhe tells saint peter, I was only
45 years old.
Why, why am I here?
And saint peter, he looks athis, his book of life and he
goes well, according to yourbilling sheets, you're 97 well
(20:08):
done so hopefully this this willcurb some of that sort of
behavior.
Aaron (20:14):
Well, you know she hit on that being such a big impact to
overall costs in and of itself,so closing loophole always
important.
Then we sort of pivoted rightafter that to, as she termed it,
voluntary dismissal and againanother piece that she
emphasizes having a huge impacton overall defense costs.
(20:38):
Let's take a listen here.
Michele (20:41):
So it used to be that when you had a lawsuit and you
had to answer the lawsuit, youwould answer the lawsuit and you
would go to you're the defense,you're answering the lawsuit.
You prepare for a lawsuit andsometimes it takes years.
So that case down in SouthwestGeorgia was on for what?
Seven or 10 years, with somecrazy amount of time where that
(21:03):
case would kept going.
And some of these cases do takethat long.
And so you've answered thelawsuit, you've gone through all
this discovery, you've done allthese depositions.
You get to the actual trial,you've picked a jury and then
the plaintiff says you know, I'mnot sure I really like that
jury, and they do a voluntarydismissal at trial and now they
can come back and refile.
(21:23):
And so the court said this istoo much, this is creating too
much cost in the litigationsystem.
So if you're going to do avoluntary dismissal of your case
, you have to do it within 60days after receipt of the answer
.
So if I'm a hospital and I getsued, I have to answer that
lawsuit in 30 days, right?
So the plaintiff's attorneywould need to decide in those
(21:48):
next 60 days.
Do they think they really havea good case and are they going
to proceed with it or are theygoing to do a voluntary
dismissal and try to reworktheir case?
So this is important from acost-saving perspective in the
litigation system.
So voluntary dismissals caneither be 60 days after the
answer now or by mutualagreement of both parties.
Aaron (22:10):
So, Erin, we heard Michelle there mention how this
voluntary dismissal, thestreamlining of it, helps avoid
plaintiffs dismissing a casejust to refile it for a whole
new jury or more favorablejurisdiction after defense costs
has already been incurred.
So another emphasis in thereform legislation to help
(22:33):
reduce costs.
I think another pivotal pointMichelle brought up there.
Yeah.
Jason (22:37):
Yeah, it almost leans on the concept of double jeopardy,
and I'm not talking the TV show.
It does stop some of the courtshopping that's gone on or even
jury shopping that has happened.
I haven't experienced it myself, but I've heard stories.
So again, I think this isreasonable reform.
Aaron (23:01):
So now the next point.
Right after this, she termed itthe big one.
According to Michelle, thisobviously was something.
When she says that and she's 30minutes in, it catches your
attention right, but this isregarding a motion to dismiss.
Let's listen to Michelle here.
Michele (23:21):
This is the biggie.
So the motion to dismiss.
So, right now, if I'm thehospital and I get sued in my
example right, and I have toanswer within 30 days, if I
think this case has no merit andthere is no reason for this
case to be brought, I want tofile a motion to dismiss.
Well, in order to file a motionto dismiss, legally, I'm
supposed to file that with myanswer, like it needs to be
(23:41):
filed, with the answer.
If I supposed to file that withmy answer, like it needs to be
filed, with the answer, if Idon't file it with the answer,
my motion to dismiss is likelygone right.
Well, the problem is is that bythe time I file my answer and I
have to do my motion to dismiss, at that time I've got to do
discovery, and so, while themotion to dismiss might be
pending, there's a whole bunchof discovery going on, there's
depositions being taken, there'sdocuments I'm having to produce
(24:03):
, lots of litigation expensesongoing, and yet I might get my
motion to dismiss and none ofthat would have been necessary
and all of this cost that I'veincurred would have been for
nothing.
And so they've changed it nowwhere, instead of filing an
answer with my motion to dismiss.
I can now just file my motionto dismiss and say look, court,
(24:23):
I don't think that this case hasmerit and I think you should
just dismiss it.
And so the court has to listen.
Look at the motion to dismiss.
Everything gets stayed in themeantime.
So no depositions, no discovery, no interrogatories, no
production of documents.
I'm not spending money todefend myself because I don't
(24:45):
think it's a real lawsuit thatshould go to court.
And so then, once the judge sayswe agree, there's no merit
behind the case, we're going todismiss it.
I'm done Now if the courtdisagrees and says you know,
there's an issue of fact ofwhether or not your nurse should
have been the one counting thesponges, so we're going to let
it go through.
Fifteen days after the judgemakes that order, I then have to
(25:06):
file my answer denyingliability.
Right, so the other time that.
So the discovery has stayed aslong as the motion to dismiss is
ongoing.
The court is supposed to rule amotion to dismiss within 90
days.
But if they don't, then theplaintiff's attorney can
petition for the court, filing amotion asking them to go ahead
and either rule on the motion orallow discovery to commence.
(25:29):
So discovery stops until thejudge actually says all right,
I'm ruling on the motion todismiss and now you have to
answer.
Or discovery could commence ifthe other court, if the other
party asked for it to, after the90 days following the briefing
of the motions.
Aaron (25:47):
So, erin, not to get lost in these weeds, because I would
get very lost trying to talk tothis, but Michelle's recapping
of voluntary dismissals and thetime frame of how they must
occur within 60 days of adefendant's answer, to help
streamline litigation, reducecost, etc.
Jason (26:05):
Just another point I wasn't aware of to help
emphasize lowering costs, yeah,yeah, well, and I think too that
the motions to dismiss beforediscovery is huge, because
discovery can be a huge cost ofany lawsuit, you know, and it
can, it's the most time.
It's the thing that delays mosttrials happening is discovery.
(26:29):
And yeah, no, I think theability to file a motion to
dismiss even before discoveryhas happened is like she said.
It's one of the biggest pieceshere and you can prove it
doesn't have merit before you gothrough all your pain and
suffering as a defendant in alawsuit and you can get the case
to go away.
(26:49):
That's big.
So, again, time will bear outhow this helps, but I think it's
going to help far more than ithurts.
Aaron (26:58):
Well, just the rework, the cost.
I mean we've talked about leanand streamline and before right.
Well, good Lord, this seemslike right up the alley of
reducing rework by folks andobviously their cost.
But good recap there ConsumerProtection Act, this along the
(27:26):
lines of litigation financing,which was another interesting
point I got to say I wasn'tfamiliar with once you dove into
the weeds there.
Let's take a listen.
Michele (27:30):
The government was very concerned and when I say the
government, the state was veryconcerned that there were third
parties out there that werelooking for plaintiffs to then
fund their lawsuits and thentake a percentage of the
settlement amount or the juryverdict amount so that it's like
a profitable business.
Right, I'm going to like a bank, I'm going to loan you money
(27:51):
and then, when the settlementcomes through, I'm going to get
a percentage of whatever yoursettlement is and I could
possibly make more money thanwhat I loaned you in June.
And the government wasconcerned that one of the
reasons that Georgia was havingsuch increases in litigation and
so many cases being brought tothe court system was because
people were literally funding it, and because they were funding
(28:13):
it, they were pushing it to getall the way to the courts so
they could get their best juryverdict.
They could possibly get thatties up a lot of money, a lot of
court system time and a lot ofprocesses and funds for both
parties on both sides.
But if I'm a plaintiff andsomeone's funding it for me, I
don't have anything to lose.
So the governments also did somereviews and they believe that a
(28:37):
lot of the entities that werebeing funded to then fund
litigation were being funded byforeign governments, and so they
passed this law that when youhave litigation financing, these
individual companies orentities must now register to do
business in the state ofGeorgia.
So before they just came in,they would go to wherever they
(28:57):
went to find plaintiffs, theywould give them funding for
their lawsuit and take apercentage of whatever was
recovered once the jury gavetheir verdict or if there was a
big settlement or whatever itwas.
Aaron (29:08):
So, erin, you know she recapped their litigation
financing changes that actuallykick in on 1-1-26.
And what I found interesting,what I wasn't aware of, she
referenced how companies nowmust register in Georgia because
previously many were foreignowned.
Jason (29:25):
I thought what an interesting point yeah, that was
news to me.
That was fascinating.
Aaron (29:31):
Yeah, and trying to restrict them from taking more
than an equal share ofsettlements and to influence
case decisions.
And also Michelle, for thosethat want to go see it she
listed it out in her webinar hada top 10 list of things that a
financier cannot do now, so tome that was a top three sort of
(29:55):
moment that I wasn't even awareof.
Jason (29:58):
Yeah yeah, no doubt this will again lots of positive
change.
Uh, in this tort reform, yeah,it wasn't perfect, don't don't
get me wrong.
There are things that I wantedto see in this tort reform that
we didn't get, but this is agood one.
A good one because I didn'teven know this was a problem.
Aaron (30:14):
I didn't even know it was a problem it kind of is
obviously a problem, it's, it's,I didn't even worry.
You can almost outsource thatlitigation financing to someone
kind of like we do with billingcollection companies,
nonetheless to a foreign ownedgovernment entity Like wow,
hello, hello, anyways, anyways,and to our lasting point, while
(30:37):
you and I can talk about thelegal cost impact and respective
timelines from this legislation, michelle, as usual, does a
much better job than you and Icould do, so let's let Michelle
wrap this up.
Michele (30:49):
Yeah, I actually think that it's going to take a little
time, right, Because there arelots of.
It's going to take a while forthese cases to move through the
courts and we'll see whether ornot the bifurcated trial cuts
down on the amount of thedamages that are actually being
awarded and we get morereasonable.
I think it's between a three toa five year horizon before the
(31:09):
savings can actually beevaluated so that you could have
knowledge of what the costsavings will be.
I think the fact that you canfile a motion to dismiss now
without going through all thatdiscovery, that should start
impacting insurance premiumsfaster, because the cost for
litigation should be less forthe defendants.
(31:29):
So when we go to renewinsurance next year, I don't
think we're going to see theinsurance premiums go down.
My hope would be that they won'tgo up as much as they have been
historically, and then the nextyear I'd like to see it stay
the same and start to then startratcheting down, because the
legal cost on these trialstrategies should be less.
(31:50):
Now we should not be havingdouble attorney's fees paid out.
We should not be incurringdiscovery.
If we have a motion to dismisson, frivolous litigation is
there, we should not see as muchfrivolous litigation if it's
being funded by third partiesthat now have to register with
the state as a business and ifthey're responsible for
frivolous litigation, they'renot going to fund or hopefully
they won't fund frivolouslitigation.
(32:11):
So I think it's a three to fiveyear horizon.
I have not asked the insurancecompanies yet to see where we
are, Cause I think everybody'sgot you know their premiums roll
at different times.
But this isn't a oh 2026,everything's going to be stable
in Georgia.
We're talking 2032.
(32:32):
We're still looking at okay,have the costs come down and
what's the jury verdict lookingat now?
Aaron (32:38):
So, Erin, again, Michelle did a great job of just
emphasizing and recapping thechef's kiss.
Jason (32:44):
Yes, chef's kiss.
Aaron (32:46):
Just the cost impact the streamlining of all these bits
and pieces of this legislationwill have.
Jason (32:54):
Yeah, well and honestly, we are excited about this, but
it's one of those things it'sgoing to take a little bit of
time to trickle through beforewe see the full impact of this.
Uh, what did she say?
Three to five years, really,before we have any true insight?
Uh, so I do not expect Georgiato start tinkering with this
(33:17):
anytime soon, unless there'ssome kind of glaring issue that
arises.
I think they're going to letthis simmer and stew for the
next three to five years beforethey make any substantive
changes to this reform.
So, going forward, I think allthe other states, particularly
those that are really strugglingwith these high awards, they're
(33:37):
going to be looking to Georgiato see how it plays out here.
So stay tuned.
It's not going to come to younext year.
It'll probably come to you in acouple of years, that's true,
and we'll have Michelle back onfor that no doubt, and it's
important to note.
I think too, this only appliesto state awards in the state
courts.
If there is any sort of federallawsuit or something like that,
(34:00):
the federal rules still apply.
I don't see those changinganytime soon.
Good point.
Aaron (34:05):
Good point.
So about a week or two afterthis episode launches our next
event, I really want tohighlight it.
It's a webinar on September30th, a live webinar titled
Decision Support Through DataAnalytics, which Aaron is a
proud data geek member of thatsquad, yeah.
Jason (34:25):
I am Data data data.
Aaron (34:27):
Data data.
But this is a repeat livepresentation, actually, that
Mike Scribner and Janey Marsandid just this August in Atlanta
for the Georgia ASC Association,where they'll take the data but
put a lot of narrative andstory behind it.
Right, like you can do anythingwith a data book what do you do
(34:48):
with it, how do you use it.
So they'll highlight how tostrengthen your managed care
strategies, what to pull fromyour system, support your APMs
all that good stuff.
So take a listen, or actuallytake a take a seat, because
they're going to have some goodslides to go over and then you
and I my friend get to dive intoit.
On the recap after the webinarthat's right.
Jason (35:10):
So on our website, shplc.
com slash webinars, there willbe a link there where you can
register for the free webinar soyou can watch it live.
And of course, if you can'tmake it at that time, no sweat,
we will have a recording postedwithin a couple of days of the
webinar going up.
And certainly, if you don'twant to go to our website, you
can contact us on our socialmedia channels.
(35:32):
We will have links there.
Aaron (35:35):
Well, another great recap , aaron, you and I will be back
on in a couple of weeks or a fewweeks here, but until then,
hope everybody has a greatSeptember and a great rest of
your week.
Jason (35:49):
And that's it for this episode of Beyond the
Stethoscope Vital Conversationswith SHP.
I'm Aaron Henry.
Aaron (35:55):
I'm Jason Crosby, still talking to the mic as if it was
my full-time job.
Jason (36:00):
This podcast is a production of Strategic
Healthcare Partners, wherehealthcare meets data and still
somehow ends up in a podcast.
Our executive producers areMike.
Aaron (36:09):
Skrimner and John Crew, who keep this train on the
tracks even when Aaron and I tryto derail it.
Jason (36:14):
We're doing our best.
Speaking of doing our best, oureditor, Naila Weave, deserves
an award for turning our verbalchaos into something somewhat
coherent Kudos for sure, let'salso give a shout out to our
social media channel by JeremyMiller at Boost by Design.
Aaron (36:30):
So if you liked it, give him some applause, if not, let's
blame Aaron.
Jason (36:34):
It wouldn't be the first time Our transcription is by a
robot, but it's been lightlymassaged into readable English
by your two hosts, both of whomare supposedly human.
Aaron (36:45):
Debatable and if you really like the transcription,
dig through our podcast archiveor check out our services at
shplccom slash podcast.
Go ahead, click around, havesome fun while you're at it.
Jason (36:56):
We'll wait for you and also come find us on social
media.
We're on Facebook and LinkedIn.
You can send us a question,leave a comment, troll us a
little bit or, more importantly,tell Jason that his dad jokes
need some work.
That one stings a little bit.
Aaron (37:11):
Thanks for hanging with us everybody.
We'll be back soon in yourfeeds.
Jason (37:15):
Assuming no one pulls the plug or trips over, for that
matter.
But until then, stay curious,stay healthy and keep asking the
vital questions, Maybe stayhydrated.
Aaron (37:26):
Just a thought.
Bye y'all.
Nyla (37:33):
Hey, this is Nyla, the podcast editor of this show.
So the other day I was on aZoom call with Jason and Aaron
and Jeremy, who does the SEO andsocial media for this show, and
on this Zoom call I told themthis joke and nobody laughed,
and so I guess I'm just not evenremotely funny.
(37:53):
Hmm.
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