Georgia Injury Law Blog

 

It looks like Governor Sonny Purdue's plans for tort reform in Georgia have hit the speed breakers sooner than he had anticipated. On March 10^th, the senate approved a substantially tamer version of a bill that would have made plaintiffs pay in the case of a losing lawsuit. The original bill had language approved by Governor Purdue, and would have made the state only the second in the country to make plaintiffs responsible for defendant's legal fees if a lawsuit was dismissed in the early stages.   That "loser pays" language has fortunately been deleted from the bill that has now been approved.    

It's not just the removal of the "loser pays" clause from his pet bill that must be giving the honorable governor heartburn. Earlier in 2009, another tort reform bill, this one too a pet project of Mr. Purdue died an early death in the Senate Economic Development Committee. This one related to the granting of civil lawsuit immunity to biotechnology companies who set up shop in Georgia. The governor announced at a meeting of the Georgia Chamber of Commerce earlier this year that biotechnology companies who wanted to invest in the state would be granted civil immunity from lawsuits in the event of an injury, if their products had been approved by the Food and Drug Administration. That bill, which had been soundly criticized by citizens' justice advocates and Georgia personal injury attorneys as being detrimental to consumer interests, seems well and truly dead, and deservedly so. To contemplate removing citizens' rights to justice and compensation in the event of an injury caused by a pharmaceutical drug or product simply because the drug has FDA approval, is a line of thinking that has just been quashed by the Supreme Court in its recent Wyeth vs. Levine verdict. 

Purdue's insistence that such immunity would open the doors of investment and prosperity to Georgians also rings hollow when you consider that Michigan, which is currently the only state that has such civil lawsuit immunity for pharmaceutical companies, has seen both civil justice and pharmaceutical investment fly out the window, since the bill was passed in that state. To pass a bill like the immunity bill that Purdue was touting, and that too during a recession when citizens need more protection from powerful interests than ever before, would have been a mockery of citizens' rights.

Posted By Lisa Siegel In Tort Reform | 0 Comments Permalink

 

Governor Sonny Purdue is at it again – he has proposed legislation aimed at reducing the number of "frivolous" lawsuits," including measures that are clearly aimed at making it harder for plaintiffs to initiate civil litigation against companies. Purdue's proposals, which he unveiled at a breakfast meeting of the Georgia Chamber of Commerce, will mean that plaintiffs have to pay the legal fees of the defendant, in case the lawsuit is dismissed at the earliest stages. Even more disturbing, the legislation will virtually grant immunity to biotechnology companies who have a "significant presence" in the state. That's political speak for giving big name pharmaceutical companies carte blanche, without the drag of accountability to the consumer. Under the proposed laws, a citizen of Georgia cannot sue a company for a defective or dangerous medical device or drug that has received approval of the FDA.

Purdue's proposals, not surprisingly were cheered by the 2500 members of the Chamber at the meeting. The initiatives, the Governor believes, will make the state "even more attractive" to biotechnology companies. The last time Georgia attempted to introduce tort reform in medical malpractice, the resulting storm was intense. That move resulted in senate Bill 3, which severely limits the amount of compensation that a patient who has been injured due to the fault of doctors, or hospitals to $350,000 even in the event of death of the patient due to negligence. Many of the provisions of the Georgia Tort Reform Act of 2005 have been removed as violations of a citizen's constitutional rights. That doesn't seem to have deterred Purdue, who this time around, intends to protect the pharmaceutical industry. Needless to say, the Georgia Trial Lawyers Association has already voiced strong opposition to any such new legislation. 

As we've seen last week in Minnesota, where a judge has thrown out dozens of lawsuits relating to the Medtronic defibrillator leads, device or drug approval from the FDA cannot and shouldn't be allowed to come in the way of a person's right to sue if these approved devices result in injuries. The Sprint Fidelis leads were approved by the FDA, and yet, have caused several deaths and heart injuries, because of fractures or broken wires that caused the defibrillator to malfunction. Now, dozens of injured patients or families of those who died have had their lawsuits dismissed, and their hopes for justice becoming bleaker because of the pre emption doctrine. 

As Georgia personal injury attorneys, we need to take more steps to help the public understand how these legislations will affect them in the event of a medical injury. If Purdue's proposals are passed, citizens lose the one line of defense protecting them from a pharmaceutical company's negligence – the option for civil litigation. If getting these pharma big boys to invest in Georgia is the target, then there are ways to accomplish that without placing citizens' constitutional rights in jeopardy.

Posted By Lisa Siegel In Tort Reform | 0 Comments Permalink

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 | 4 Comments Permalink