Dear Mr. Chairman:

I have had the opportunity to review the final draft of the evidence code revision and would like to provide the committee with the following comments on behalf of the Medical Association of Georgia (MAG) and the Georgia Hospital Association (GHA).

Code section 24-14-3, on page 80 of the final draft, states, “In all civil proceedings, a preponderance of evidence shall be considered sufficient to produce mental conviction.” (emphasis added).  Our concern is that this provision will, by implication, repeal Code section 51-1-29.5 which provides that in actions arising out of the provision of emergency medical care, “…no physician or health care provider shall be held liable unless it is proven by clear and convincing evidence…”. (emphasis added). 

I had the opportunity to discuss this concern with a couple members of the committee and the general sense was that because a specific statute will prevail over a general statute, Code section 51-1-29.5 should not be in jeopardy.  However, a specific statute will prevail over a general statute only when there is no indication of a contrary legislative intent. In the Interest of C.S., et al., children, 282 Ga.7, 8 (2007).  Because a subsequent statute repeals a prior statute by implication when the two acts are contradictory, irreconcilably conflict, and cannot stand together [Sutton v. Garmon, et al., 245 Ga.685, 687 (1980)] and because “all statutes are presumed to be enacted with full knowledge of existing law…” [Higdon v. City of Senoia, 273 Ga. 83, 86 (2000)], MAG and GHA are very concerned that absent a qualifier, the use in 24-14-3 of the phrase “all civil proceedings” and the directive that a preponderance of the evidence be considered sufficient may be viewed by the courts as contradictory to, and irreconcilable with, the provisions of 51-1-29.5, and interpreted as an indication of legislative intent to repeal by implication Code section 51-1-29.5.

In light of the foregoing, MAG and GHA respectfully request the committee consider inserting either “Except as otherwise provided by law…” or, in the alternative, “Except as otherwise provided in Code section 51-1-29.5…” at the beginning of the second sentence of 24-14-3 so it will read either as  “Except as otherwise provided by law, in all civil proceedings, a preponderance of the evidence shall be considered sufficient to produce mental conviction.” or as “Except as otherwise provided in Code section 51-1-29.5, in all civil proceedings, a preponderance of the evidence shall be considered sufficient to produce mental conviction.”  MAG and GHA thank you and the committee for your consideration of this important matter.

Sincerely,

Brian W. Looby