If a Georgia physician's malpractice insurer pays out under a high-low agreement even after the physician wins at trial, must the physician report that payment to the Composite Medical Board?

Plain-English summary

A "high-low agreement" in a medical malpractice case is a hybrid: the plaintiff and the defendant's insurance carrier agree that if the jury comes back for the plaintiff, the insurer will pay a defined amount (often the policy limits) but no more, and if the jury comes back for the defense, the insurer still pays a defined smaller amount (often well below the policy limits). The trial proceeds, but both sides know the financial outcome will be bounded.

The Georgia Composite Medical Board asked the Attorney General whether a physician was required to report to the Board a high-low payment when the trial ended in a defense verdict. AG Sam Olens said yes. The reporting duty in O.C.G.A. § 43-34-8(j) is broad: "Every licensee, certificate holder, or permit holder shall notify the board of any settlement or judgment involving the licensee, certificate holder, or permit holder involving an action for medical malpractice." That language is unambiguous, and a "settlement" includes any agreement that ends a dispute or lawsuit. Black's Law Dictionary, the AG noted, defines "high-low agreement" as exactly that: a settlement.

The fact that litigation continues after a high-low agreement does not change the analysis. The litigation continues within the agreed-upon financial bounds, and the agreement itself ends the underlying dispute on those terms. The high-low agreement is a settlement when entered, regardless of what the jury later does.

The opinion also stitched together the dual-reporting framework. Under § 33-3-27(b), every malpractice insurer must notify the Board within 30 days of paying a judgment or entering an agreement to pay any amount to settle a malpractice claim, regardless of dollar amount. Under § 43-34-8(j), the physician must report any settlement or judgment. The two statutes work in tandem to ensure the Board learns about every payment made on a physician's behalf.

The Board had also asked, as a backup question, whether the Board would be required to investigate if the physician voluntarily reported a payment that was not technically required to be reported. Because the AG answered the first question yes, the second question did not need to be addressed.

Currency note

This opinion was issued in 2016. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Q: Why does it matter whether a high-low agreement is "settlement"?
A: The reporting duty in § 43-34-8(j) is keyed to "any settlement or judgment." If a high-low agreement is not a settlement, then a defense-verdict-with-payment outcome would arguably escape reporting. The AG closed that loophole.

Q: Did the physician's victory at trial matter?
A: No, for purposes of reporting. Even when the jury returned a defense verdict, the underlying high-low agreement was a settlement, and any payment made under it triggered the reporting duty.

Q: What about the dollar amount?
A: The physician's reporting duty under § 43-34-8(j) applies to "any settlement or judgment." The Board's separate duty to investigate is triggered by judgments or settlements over $100,000 reported under § 33-3-27, or by two or more prior judgments or settlements.

Q: When does the insurer have to report?
A: Within 30 days of paying the judgment or entering the agreement to pay, under § 33-3-27(b). The insurer reports regardless of dollar amount.

Q: Why does Georgia have a dual-reporting system?
A: Redundancy. The General Assembly designed the system so that the Board learns about payments on a physician's behalf from both the physician and the insurer. If one fails to report, the other catches it.

Q: What does the Board do with the information?
A: Under § 43-34-8(j), the Board "shall investigate" if it receives a notification of a malpractice judgment or settlement over $100,000, or notification of two or more prior judgments or settlements. The information feeds the Board's review of physician fitness to practice.

Background and statutory framework

Georgia's medical malpractice reporting framework rests on two statutes. The first, O.C.G.A. § 33-3-27, sits in the insurance code and obliges every malpractice insurer doing business in Georgia to notify the Composite Medical Board of every payment made on a physician's behalf, whether by judgment or by agreement. The second, O.C.G.A. § 43-34-8(j), sits in the medical-board-licensure code and obliges the physician personally to notify the Board of any settlement or judgment involving a malpractice action.

The dual obligation reflects a policy choice the General Assembly made: physician fitness to practice should be reviewed in light of every malpractice payment, not just every malpractice loss. A high-low agreement is a particular wrinkle because it departs from the standard "settlement = case ends with payment" structure. With a high-low, the case does not end at agreement; it goes to verdict, but the financial outcome is constrained.

The AG's textual approach (statute is unambiguous, settlement means agreement ending dispute, high-low fits) closed what would otherwise have been a reporting gap. The result protects the integrity of the Board's investigative system and prevents physicians and insurers from using the high-low structure to avoid the reporting trigger.

Citations and references

Statutes:
- O.C.G.A. § 33-3-27 (insurer notification duty)
- O.C.G.A. § 43-34-8(j) (Board investigation duty; physician notification duty)

Cases:
- McKinney v. Fuciarelli, 298 Ga. 873 (2016) (clear and unambiguous statutory language given plain meaning)

Source

• Landing page: https://law.georgia.gov/opinions/2016-6

Original opinion text

The Georgia Composite Medical Board (hereinafter the "Board") has requested my official opinion regarding whether a physician who is licensed by the Board has a duty to report to the Board a payment made as a result of a high-low agreement in a malpractice case when there is a judgment in favor of the physician, and, if the physician is not required to report such a payment in this circumstance but reports the payment to the Board, whether the Board then is required to conduct an investigation into the facts of the malpractice case. The high-low agreement that is described in information accompanying your letter is a high-low agreement in a medical malpractice action in which the plaintiff and the defendant's insurance carrier agree that in the event of a plaintiff's verdict, the plaintiff will accept a certain amount, usually the policy limits, in exchange for the physician's insurance carrier's agreement to pay a sum certain, usually less than the policy limits, in the event of a defense verdict. Subject to this understanding, and based on my review of the relevant statutes, I conclude that a physician is required to report a payment under a high-low agreement, even in the case of a defense verdict. The physician's duty to report a settlement to the Board is set out in the same statute as the Board's duty to investigate in connection with a malpractice judgment or settlement, which states: The board shall investigate a licensee's, certificate holder's, or permit holder's fitness to practice pursuant to this chapter if the board has received a notification, pursuant to Code Section 33‑3‑27, regarding that licensee, certificate holder, or permit holder of a medical malpractice judgment or settlement in excess of $100,000.00 or a notification pursuant to Code Section 33‑3‑27 that there have been two or more previous judgments against or settlements with the licensee, certificate holder, or permit holder relating to practice pursuant to this chapter involving an action for medical malpractice. Every licensee, certificate holder, or permit holder shall notify the board of any settlement or judgment involving the licensee, certificate holder, or permit holder involving an action for medical malpractice. O.C.G.A. § 43‑34‑8(j) (2016) (emphasis added). The plain language of the last sentence of the aforementioned paragraph clearly provides that a physician licensee has a duty to report to the Board "any settlement." O.C.G.A. § 43‑34‑8(j). See McKinney v. Fuciarelli, 298 Ga. 873, 874 (2016) ("When a statute contains clear and unambiguous language, such language will be given its plain meaning and will be applied accordingly.") Although the term "settlement" is not defined in these statutes, the meaning of "settlement," in a legal context, includes "an agreement ending a dispute or lawsuit." Black's Law Dictionary 1405 (8th ed. 2004). Furthermore, a "high-low agreement" is defined as "a settlement in which a defendant agrees to pay the plaintiff a minimum recovery in return for the plaintiff's agreement to accept a maximum amount regardless of the outcome of the trial." Black's Law Dictionary 747 (8th ed. 2004) (emphasis added). Consequently, the answer to the question whether a high-low agreement is a "settlement" is yes. While litigation may continue after a high-low agreement is entered, it continues within the confines of the agreement and is sure to terminate at the conclusion of the trial on the agreed upon terms. Thus, a physician is required to report a high-low agreement in a malpractice action to the Board because it is an agreement to pay money on behalf of the physician that ends a dispute or lawsuit involving a claim for medical malpractice. This interpretation is reinforced by the language found in subsection (b) of O.C.G.A. § 33‑3‑27 (2016), which is referenced in O.C.G.A. § 43‑34‑8(j). Subsection (b), which identifies and describes the insurer's duty to notify the Board with respect to medical malpractice cases, states: Every insurer providing medical malpractice insurance coverage in this state shall notify in writing the Georgia Composite Medical Board when it pays a judgment or enters into an agreement to pay an amount to settle a medical malpractice claim against a person authorized by law to practice medicine in this state. Such judgments or agreements shall be reported to the board regardless of the dollar amount. Such notice shall be sent within 30 days after the judgment has been paid or the agreement has been entered into by the parties involved in the claim. O.C.G.A § 33‑3‑27(b) (2016) (emphasis added). As provided above, an insurer has a duty to report to the Board when the insurer "pays a judgment or enters into an agreement to pay an amount to settle a medical malpractice claim" against a physician. O.C.G.A. § 33‑3‑27(b). The insurer's duty to report is triggered by the payment made or entering an agreement to pay in order to settle or resolve a medical malpractice claim. Additionally, when O.C.G.A. § 33‑3‑27(b) is construed with O.C.G.A. § 43‑34‑8(j), it is clear that they are intended to establish a system of information referral to the Board concerning malpractice actions to enable the Board to identify cases where an investigation is warranted or may be required. Under O.C.G.A. § 43‑34‑8(j), the physician must report any settlement or any agreement ending a dispute or lawsuit involving an action for medical malpractice, and, under O.C.G.A. § 33‑3‑27(b), the physician's malpractice carrier must report any agreement to pay any amount to settle a medical malpractice claim. Thus, the two statutes establish a system of dual reporting to insure that the Board receives information regarding the payment of money on behalf of a physician or the existence of an agreement involving the payment of money on behalf of the physician in a medical malpractice case. Because I have answered the first question in the affirmative, it is unnecessary to address the second question. Therefore, it is my official opinion that, pursuant to O.C.G.A. § 43‑34‑8(j), a physician is required to report to the Board a payment made as a result of a high-low agreement in a medical malpractice case, even if there is a judgment in favor of the physician. Prepared by: Wylencia Hood Monroe Senior Assistant Attorney General