Georgia Injury Law Blog

The Tort Reform Act of 2005 may be going up on appeal.   In 2005 Georgia legislators saw fit to pass a Tort Reform Act that, among other things, gave emergency room doctors virtual immunity from negligence suits. 

That bill provided that the ER staff cannot be held liable for damages unless it is shown by clear and convincing evidence that the doctor or health care provider’s actions showed “gross negligence.” Gross negligence is defined as the absence of that degree of care that every man of common sense, however inattentive he may be, exercises under the same or similar circumstances. Another common definition of “gross negligence” is “reckless disregard for the safety of the patient.”

In addition to this standard of care change, pain and suffering damages in a medical malpractice case were capped at $350,000. Thus, if you are injured as a result of medical malpractice, your right to recover has been greatly diminished. 

In a case currently pending in Fulton County Superior Court, Plaintiff Cheon Park claims that the malpractice of doctors and attendants in a Douglas County Emergency Room left him a quadriplegic. 

 
Plaintiff Park fell from a 12-foot ladder on December 9, 2006. EMTs immobilized his neck and back with a cervical collar and backboard. He was transported to Wellstar Douglas Hospital. He complained of neck, shoulder and arm pain. His cervical and backboard were removed. After a short workup, he was released. However, he could not move. Family and hospital staff had to carry him to his family automobile. Three days later at Grady Hospital, he was diagnosed with three spinal fractures and spinal cord bruising. He is now a C-4 quadriplegic, having limited use of his arms and no use of his legs. 

 
The plaintiff claims the Tort Reform Act reformed “his constitutional rights right out of existence.” As ER patients are granted a lower standard of care than other patients, his constitutional rights to equal protection of the law were violated.

 
Trial lawyers and civil advocacy groups argued against tort reform, claiming that it deprived victims of constitutional rights and that the medical insurance industry had fostered a false crisis, blaming frivolous lawsuits for driving up premiums when financial markets had actually caused some, but not significant, losses.

 In 2005, advocates for Tort Reform claimed that it would reduce malpractice premiums for doctors, thus lowering insurance rates and attracting more doctors and a variety of insurers to Georgia. 

Records obtained from the Office of the Insurance Commissioner reveal the opposite. Many of Georgia’s insurers raised their premiums since the reforms took place in 2005. 

 Mag Mutual, Georgia’s largest medical malpractice insurer, increased physician premiums by 55.4 percent from 2000-2004. Since 2005, First Professional Insurance requested a 68.3 percent rate increase and was granted a 35 percent rate increase. Medical Assurance Company requested a 64.10 percent rate increase and was granted a 35 percent rate increase. The Medical Protective Company requested two rate hikes, one four months after the Tort Reform Act passed. Rate hikes of 24 percent and 28.8 percent were both allowed. Finally, Medical Mutual Insurance Company received a rate hike of 13.8 percent in January of 2006.

 
All of these rate hikes occurred during a time period when medical payouts to malpractice claimants and plaintiffs have dropped significantly because of limitations created by Georgia Tort Reform Act.

 
Looking at the evidence, the Tort Reform Act has completely failed in its stated purpose of lowering physician premiums. Meanwhile, insurers reveal record-breaking profits. The Property Casualty Insurers Association of America reports rising profits from $3 billion to $41 billion during the period of 2002-2004. The National Association for Insurance Commissioners reports that the property casualty industry holds assets in excess of $1.3 trillion.

Allsion Wall, director of the consumer advocacy group, Georgia Watch, debunks Georgia Tort Reform claiming, “the objective of Senate Bill 3 [The Tort Reform Act of 2005] was to limit the constitutional rights of taxpayers who seek justice.” She adds, “the law does nothing to address price gouging in the insurance industry, nothing to improve access to quality health care for our families, and it removes accountability where it is due – the insurance industry.”

 
Economists at Harvard and Dartmouth published their recent findings in the Cato Institute’s Regulation Magazine. Economists found that caps on medical negligence damages, such as the $350,000 cap in Georgia, have no impact on insurance premiums or the cost of practicing medicine.

 
In May the New England Journal of Medicine cast doubt on the insurance industry’s claim that frivolous malpractice lawsuits were driving up the cost of malpractice insurance. The Harvard researchers found that cases involving real negligence outnumbered frivolous cases two to one. Eighty percent of those cases involved real injuries of significant or catastrophic injury or death. 

 
Piecemeal constitutional attacks on tort reform in Georgia have had some impact. The Georgia Supreme Court ruled unconstitutional that portion of the bill that allowed defendant doctors to demand that cases be heard in their home counties. Last year the court struck down a section that required medical malpractice plaintiffs to open their medical records before they were allowed to file suit.  

A new bill before the legislature this session, Sentate Bill 286, proposes replacing the “gross negligence” standard with “failed to meet the applicable standard of care.” Needless to say, The American Medical Association and Georgia Hospital Association oppose this bill.  

However, the Park case provides an opportunity that the Georgia Tort Reform Act will be struck down in its entirety as unconstitutional. Let’s hope that the court is willing to do what the legislature did not – protect Georgia citizens.

Posted By Lisa Siegel In Tort Reform | 0 Comments Permalink

As the Georgia General Assembly is currently in session, another topic that we’ll try to stay on top of for you is the funding of the state’s seven mental health hospitals. The Georgia Department of Human Resources runs these facilities statewide. The seven hospitals are Northwest Georgia Regional in Rome, Georgia Regional in Atlanta, Central State in Milledgeville, East Central Regional in Augusta, Georgia Regional in Savannah, Southwestern State in Thomasville, and West Central Regional in Columbus.

Thanks in large part to an  investigative report by the Atlanta Journal Constitution this year; attention has been focused on the appalling medical care deficiencies at these hospitals. Justly, these hospitals have become a hotbed of medical malpractice claims. 

In 2007, the hospitals reported twenty-one deaths. One hundred and fifteen patients died in the four-year period from 2002 to 2006. All of these deaths arose from abuse or neglect. Most of these facilities are understaffed and overcrowded. Many of these deaths occurred due to over-medicating, misdiagnosing symptoms, and nurses or aides failing to follow doctor’s orders. 

In 2002, federal regulators cited several deficiencies for correction. In 2006, these deficiencies had still not been corrected. An independent consulting group hired by the governor’s office issued a scathing review of patient care. Federal and state inspectors continually issue citations for failures in basic policy and care. 

Advocates for the mentally ill, such as the National Alliance for Mental Illness, propose that states encourage random hospital visits by families, fund pay increases for nurses and aides, provide medical school loan pay-off programs for doctors who practice in state-run facilities, set up independent board oversight of patient deaths, and remodel out-dated facilities. 

The Department of Human Resources contends that many problems could be improved with more state funding. DHR also believes the state should address community resources for patient care. Mental health patients often need housing, transportation and employment on discharge. Some patients cannot be discharged because they have nowhere to go.

Currently, the United States Department of Justice is investigating Georgia’s state-run hospitals for violations of civil rights laws. The Department of Justice could file a lawsuit in federal court forcing Georgia officials to overhaul the hospitals. 

Governor Sonny Perdue’s spending plan for fiscal years 2008 and 2009 includes $36.2 million to improve the state-run mental health hospitals. However, only $16.4 million counts toward “new” spending. The money will go for higher salaries, increased staffing and more training of employees. Much of the additional funding will go to turn-around efforts at Georgia Regional, Northwest Georgia and West Central State. The other $19.4 million erases deficits created when federal funding fell short of projections. 

One area that remains unfounded is the ombudsman program that was created in 2000, but never implemented because the legislature did not fund it. The ombudsman is to investigate reports of abuse and help families with community placement. 

State legislators and the governor’s office contend that these problems did not arise overnight, and they cannot be solved in one year either. Sadly, the people who will suffer as a result of the state’s poorly run mental hospitals are the patients and their families. 

If you or a member of your family may have a medical malpractice claim against a state-run mental health hospital, contact the law firm of Robert N. Katz for a free, private consultation.    

Posted By Lisa Siegel In Medical Malpractice | 0 Comments Permalink

Last week, a divided Georgia Supreme Court in Nathans v. Diamond, S07A0738 tightened the rules relating to expert testimony in medical malpractice cases. 

In 2003, Dr. Andrew Diamond of Northside Ear, Nose and Throat (Northside ENT) performed surgery on plaintiff Nathans to correct his sleep apnea. During the surgery, Nathan suffered bleeding, respiratory distress and lapsed into a coma. After recovering, Nathans and his wife filed a medical malpractice lawsuit against Diamond, claiming he failed to adequately inform him of the risks of the surgery. 

As required in Georgia under O.C.G.A. § 9-11-9.1, all medical malpractice complaints must be filed with an attached affidavit of a medical expert attesting that the defendant deviated from the standard of care. The Nathans attached an affidavit of a pulmonologist from Tampa, Florida.

In the answer and the subsequent motion for summary judgment filed by the defendant, Diamond contended that the attached affidavit was insufficient as the expert was not an ENT. 

The trial court granted summary judgment to Diamond, holding that the expert was not sufficiently qualified to give testimony pursuant to the rules of expert testimony provided by O.C.G.A. § 24-9-67.1. This evidentiary rule (based on a federal rule) provides that expert opinion testimony is admissible if the expert has “actual professional knowledge and experience in the area of practice or specialty in which the opinion is to be given.”   The Georgia Supreme Court upheld the trial court’s decision, holding that in order to be qualified to give an expert opinion, the expert must have “actively practiced in the specialty area with sufficient frequency to establish an appropriate level of knowledge.”

This decision arises out of the rule changes effectuated by the Georgia Tort Reform Act of 2005 that made it harder for plaintiffs to win lawsuits. With this decision, now doctor experts must walk in the same shoes and at the same time as the defendant doctor in medical malpractice cases.

Of note, the expert pulmonologist in issue here is a Harvard trained doctor with 28 years of experience in pulmonology. The plaintiffs contended that the medical complication that arose was a pulmonary complication, not one specific to the ear, nose and throat specialty. The dissent opinion noted this important distinction, claiming that the essence of the medical malpractice was that Diamond failed to inform Nathan of the pulmonary risks of the surgery.

The Georgia Trial Lawyers Association downplays this decision, claiming it won’t have much affect on future medical malpractice cases as the case is fact specific. 

 More constitutional cases are on the horizon challenging the Georgia Tort Reform Act of 2005. The Georgia Supreme Court has yet to decide, Mason vs. Home Depot, S07A1486. In Mason, the defendants challenge another part of the law that tightens standards for expert witness testimony in all civil cases, known as the Daubert Rule. The Daubert rule makes it easier for a trial judge to disqualify expert testimony as being “junk science.” The rule allows the trial judge to be the “gatekeeper” to ensure that expert testimony is based on a “reliable foundation.”   As the rules regarding expert testimony tighten, plaintiffs will face tougher challenges getting their case before a jury. Moreover, fewer plaintiffs’ attorney may want to take on the more challenging cases. 

 With over twenty years of experience in tort litigation, the law firm of Robert N. Katz is very familiar with the changing area of tort law. We look forward to helping you with your claim.       

Posted By Lisa Siegel In Medical Malpractice | 0 Comments Permalink