“The opinions from Georgia’s highest court last year had a considerable impact on the rights that consumers have under the law, particularly those regarding the access injured parties have to civil justice,” said Ashley Wilson, Georgia Watch staff attorney. “The Court Watch report is a necessary resource for consumers and legal professionals alike, as many of these cases would simply not be reported otherwise.”

Notable consumer cases discussed include:

• Atlanta Oculoplastic Surgery v. Nestlehutt: A controversial law capping the amount of money an injured patient could recover from a negligent medical provider for non-economic damages was deemed unconstitutional.
• Gliemmo v. Cousineau: The negligence standard for emergency room doctors has been raised, creating a disadvantage and higher bar for plaintiffs to overcome in order to recover damages.
• Smith v. Baptiste: Plaintiffs must now estimate the amount of a potential final judgment of their claims within a range of accuracy and, if they’re wrong, they could face paying the attorney’s fees of the opposing party.
• State ex rel. Doyle v. Frederick J. Hanna & Assocs.: The Court held that debt collection attorneys, who often also operate debt collection outfits out of the same office space or own debt collection outfits, are not subject to the Georgia Fair Business Practices Act.

“Georgia has many procedural hurdles that limit the consumer’s access to civil justice for fear that such access will hamper economic activity and increase the cost of consumer goods and services,” said 2010 Court Watch Fellow Simeon Niles. “Georgia must do more to protect consumers’ access to civil justice, because access to the court system is often the only means to redress for individual consumers harmed by their interactions with the marketplace.”

Click here to read the report.

Learn about Simeon Niles, the 2008 Court Watch Fellow here.

The 2011 Georgia General Assembly kicks off on January 10th. There will be a lot of new faces this year as there will be 33 new representatives in the House. 12 of 56 incumbent state senators either moved on or were defeated on election day. And of course, Governor Sonny Perdue has reached the two term limit and will be succeeded by former Congressman Nathan Deal.

This significant turnover can be an opportunity to build relationships with new legislators. Getting to know your legislators now and staying in touch with them can be vital when an issue that is critical to you comes before them. To locate which district you live in, go to the Secretary of State’s My Voter page at: http://www.sos.ga.gov/mvp/

As always, the General Assembly will have a number of important issues to tackle in 2011. Here is a preview of some of the things that are likely to be on the legislative to-do list:

Budget

The legislature will have to reconcile the ambitions of some leaders who wish to spur growth through income tax cuts with the reality of a budget deficit between $1.5 and $2 billion. This gap will have to be closed through spending cuts and/or increasing revenue. Several years of declining revenues have left few options for further spending cuts. A commission has been examining ways to improve Georgia’s tax structure and will be making a recommendation to the legislature next year. A broad introduction of higher tax rates in a down economy seems unlikely, but some special interest tax breaks may be coming to an end.

Immigration

Expect action on the issue of illegal immigration. A special committee was appointed this fall to consider new laws to limit unauthorized immigration into Georgia.

Water

The legislature and governor are likely to spend a considerable amount of time on water. In the next year and a half, Georgia must come to some agreement with Alabama and Florida on water use or be faced with dialing back consumption to levels not seen in over 30 years.

——————

Georgia Watch will be monitoring the legislature and speaking out on behalf of consumers. Some of the consumer issues that we hope legislators consider include:

Energy

Utility customers large and small have begun to unite for fairness in rates and management decisions. Georgia Watch has represented consumers at the PSC and will continue that advocacy at the Capitol.

Foreclosure

The foreclosure crisis continues in our state with no sign of relief in the near future. In addition to the devastation that the loss of a home has on a family, foreclosure leaves neighborhoods with blighted properties, robbing equity from nearby homeowners and depressing local government revenue. Tenants are thrown out of their rental homes through no fault of their own. Protecting families and communities affected by foreclosure will continue to be a Georgia Watch priority.

Civil Justice

Last year the Supreme Court of Georgia stood up for the Constitutional rights of injured patients and their families by striking down the notorious cap on damages in medical malpractice suits. But it remains to be seen whether this legislature reacts with another big government intrusion into the courtroom. Georgia Watch will remain vigilant in opposing laws that impose a one-size-fits-all answer to those who are injured through no fault of their own.

Hospital Accountability

It is important to make sure that hospitals are billing patients in a fair and transparent manner, and that finances are being managed prudently. In the wake of last year’s new tax on hospitals, some expect that hospitals will have a considerable amount of clout at the Capitol. We intend to make sure accountability and fairness are a part of any policy discussions regarding hospitals.

For more information on legislative matters or to volunteer your time at the Capitol, call us at (404) 525-1085.

“The very existence of the caps, in any amount, is violative of the right to trial by jury,” wrote Chief Justice Carol Hunstein. “[The cap] clearly nullifies the jury’s findings of fact regarding damages and thereby undermines the jury’s basic function.”

The ruling effectively struck down the centerpiece of Georgia’s sweeping 2005 tort reform law, Senate Bill 3, which capped noneconomic awards – including those for pain and suffering – at $350,000.

At the time SB 3 passed, supporters said it would reduce medical malpractice insurance premiums and attract doctors from across the country. However, between 2005 and 2008, premiums fell only 7 percent and the number of physicians per capita remained essentially the same.

“In simplest terms, SB 3 limited accountability for medical negligence and padded the profit margins of large insurers,” said Georgia Watch executive director Angela Speir Phelps. “This ruling stops the government from trampling on the rights of malpractice victims and our citizen juries.”

The court’s decision upholds a $1.265 million jury award to Betty Nestlehutt, a Marietta real estate agent. Nestlehutt, now 75, was left permanently disfigured after a plastic surgeon with Atlanta Oculoplastic Surgery botched what should have been a routine face-lift procedure. Nestlehutt was so severely injured that her lawyer, Adam Malone, said she had trouble leaving her house.

Nestlehutt was awarded $900,000 for pain and suffering by a Fulton County jury. Atlanta Oculoplastic Surgery appealed that amount on grounds that it violated SB 3. The trial judge sided with the jury award and declared the $350,000 cap unconstitutional, setting the stage for the high court ruling.

Georgia Watch deputy director Danny Orrock says the Supreme Court decision protects patients and their constitutional rights.

“It restores the promise of justice for all and the rights of all Georgians – young and old, rich and poor – to access the courts,” says Orrock.

The Nestlehutt decision likely means legislators will renew efforts to impose restrictions on malpractice victims. Lawmakers are already discussing the possibility of a constitutional amendment addressing caps on damages, similar to one Texas passed in 2003.

In any case, much of SB 3 remains intact. The Supreme Court has recently upheld two key provisions of the law. The first makes it nearly impossible for patients to recover damages in cases involving emergency room care by requiring that no physician or health care provider shall be held liable unless it is proven by clear and convincing evidence that the physician or health care provider’s actions showed gross negligence. The second forces the losing side in a lawsuit to pay the other side’s legal fees, a practice that can discourage victims from bringing legitimate claims to court.

Georgia Watch remains strongly opposed to any legislation that impedes access to the courts, including measures that limit the amount an attorney can collect from a settlement.

We remain firmly committed to protecting malpractice victims and fighting for greater access to the courts.

The “2009 Annual Report” identifies and profiles the most noteworthy consumer-related decisions released by the appellate courts throughout the year, and identifies emerging trends.

“The Supreme Court of Georgia and the Court of Appeals make decisions that have significant impacts on the rights of consumers,” said Georgia Watch Executive Director Angela Speir Phelps.  “This project is important because developments in the law can be make or break for a family that has been harmed by medical negligence, or a person whose identity has been used fraudulently to open up a line of credit.”

*To view the 2009 Court Watch Report in PDF, click here.

Notable consumer cases discussed include:

• Horner v. Robinson, 299 Ga. App. 327 (2009) – In order to secure a valid lien on personal property, a creditor must strictly comply with the notice provisions in the statute in question.
• Wirth v. Cach, LLC, 300 Ga. App. 488 (2009) – A creditor must prove the entire chain of assignment of a debt by competent evidence in order to collect on it.
• McCord et al. v. Lee et al., 286 Ga. 179 (2009) – The “new injury” exception is narrowed exclusively to situations where a previous harmful misdiagnosis is left untreated and “develops into a more serious and debilitating condition,” thereby excluding individuals who suffer negligence without misdiagnosis.

“While Georgia law is often unfriendly to consumers, some helpful opinions were issued in the areas of debt collection and notice pursuant to a repossession or garnishment,” Court Watch Fellow Matthew Bouillon said. “However, in 2009 we saw the new injury exception to the statute of limitations in medical malpractice cases further narrowed by the Supreme Court of Georgia, making it nearly impossible for a patient to seek redress for a misdiagnosis that leads to a slowly manifesting injury. Such trends are important, especially in a year when there is an open seat on the Court of Appeals.”

The Court Watch Fellowship is a collaborative effort of the 2009 Court Watch Fellowship recipient and primary researcher, Matthew Bouillon, and the Court Watch Advisory Committee, which includes a consumer law professor, a magistrate judge, a clerk for a state court judge, and a consumer attorney.

See the consumer wins and losses below:

The Supreme Court of Georgia

Consumer Wins

Thompson v. Allstate Insurance Co and Thompson v. Georgia Farm Bureau Casualty Insurance Co., 285 Ga. 24 (2009)

One spouse’s acceptance of an insurance settlement payment does not necessarily show that the other spouse received any part of that money for the purposes of recovering underinsured motorist benefits pursuant to O.C.G.A. § 33-24-41.1.

American Multi-Cinema v. Brown, 285 Ga. 442 (2009)

A business invitee who falls and is injured thanks to an ill-placed, collapsed ‘Wet Floor’ sign in a crowded area can avoid summary judgment by offering evidence of the same to show actual knowledge on the part of the business.

Retention Alternatives, Ltd. v. Hayward, 285 Ga. 437 (2009)

In a controversy over the statute of limitations on service of process in the Uninsured Motorist Act, the Supreme Court acted in conformance with the Renewal Act, in that anyone who begins an action within the statutory period can dismiss and renew it within either six months of commencement or within the original statutory period, whichever is longer.

Condra v. Atlanta Orthopaedic Group, P.C. 285 Ga. 667 (2009)

An expert witness’s personal practices relative to his or her profession are now admissible for the purpose of assessing the expert’s credibility.

Smith v. Finch, 285 Ga. 709 (2009)

The “hindsight” jury instruction is no longer valid in Georgia due to its prejudicial effect in limiting liability for doctors in certain contexts.

Beneke v. Parker et al. and vice versa, 285 Ga. 733 (2009)

In automobile accidents where the responsible party is also cited for a traffic violation, an injured plaintiff can file a claim at any point the criminal charge is still pending for up to six years.

Consumer Losses

Bragg v. Oxford Const. Co., 285 Ga. 98 (2009)

The acceptance doctrine is still valid in Georgia.  Contractors are protected from liability after delivering as long as they are not grossly negligent.

Blotner v. Doreika, 285 Ga. 481 (2009)

Chiropractors are not required to disclose all possible risks of a procedure to their patients.

McCord et al. v. Lee et al., 286 Ga. 179 (2009)

The “new injury” exception is narrowed exclusively to situations where a previous harmful misdiagnosis is left untreated and “develops into a more serious and debilitating condition,” thereby excluding individuals who suffer negligence without misdiagnosis.

State Farm Mut. Auto. Ins. Co. v. Staton et al., 286 Ga. 23 (2009)

To stack one’s own uninsured motorist insurance benefits, the plaintiff must be the “named insured” on the policies in question.

The Court of Appeals of Georgia

Consumer Wins

Parham v. Peterson, Goldman & Villani, 296 Ga. App. 527 (2009)

Creditors seeking to repossess property must provide the debtor with proper notice and a declaration of the debtor’s rights associated with the property.

Nyankojo v. North Star Capital Acquisitions, 298 Ga. App. 6 (2009)

A creditor seeking to collect on a debt must introduce competent evidence to show the chain of assignment actually leads back to the debtor.

Horner v. Robinson, 299 Ga. App. 327 (2009)

In order to secure a valid lien on personal property, a creditor must strictly comply with the notice provisions in the statute in question.

TBF Financial, LLC v. Houston, 298 Ga. App. 657 (2009)

Plaintiff creditors seeking garnishment must make a prima facie showing of compliance with notice requirements in order to avoid sua sponte dismissal.

Wirth v. Cach, LLC, 300 Ga. App. 488 (2009)

A creditor must prove the entire chain of assignment of a debt by competent evidence in order to collect on it.

Bonner v. Peterson, et al. 301 Ga. App. 443 (2009)

Resident physicians are not students for the purposes of O.C.G.A. § 51-1-38 and therefore are not immune from liability.

Consumer Losses

Cowart v. Widener, 296 Ga. App. 712 (2009)

Negligence suits involving “specialized medical questions” now require expert testimony in order to establish causation.

Tookes v. Murray, 297 Ga. App. 765 (2009)

In order to avail oneself of unlimited punitive damages, the plaintiff must show the defendant acted with specific intent to cause the harm in question.

Porter v. Guill, 298 Ga. App. 782 (2009)

A person who relies on government support to access healthcare from government physicians will have no cause of action against those physicians absent willful or wanton conduct.

Summit Automotive Group, LLC. v. Clark, 298 Ga. App. 875 (2009)

A car manufacturer is not subject to liability for the dishonest or criminal acts of its franchisees if liability is limited at the outset and there is no abuse of the corporate form.

*To view the 2009 Court Watch Report in PDF, click here.

There’s been a lot of chatter about the Supreme Court of Georgia’s decision to overturn caps on damages for victims of medical malpractice. It’s understandable this would generate interest, since it affects our most basic rights as citizens.

In 2005, Senate Bill 3 was heralded as a fix for many of the ills facing the health care industry. Despite the promises of tort reform proponents, doctors have not stampeded into Georgia, medical liability insurance premiums have not come down and competition in the medical liability market has not increased.

What Senate Bill 3 has done is limit accountability for medical negligence and padded the profit margins of large insurers.

Let’s set the record straight on the number of doctors in Georgia. According to the American Medical Association, the largest doctor organization in the country, the number of doctors per capita in Georgia did not change between 2005, when SB 3 passed, and 2008. Any increases in the number of doctors have matched population growth.

Quite simply, access to care in Georgia was not improved by SB 3. Doctors have not rushed into our state over the past five years and medical liability insurance rates have not markedly improved in that time. According to the Medical Liability Monitor, a trade publication, the average medical malpractice insurance premium increased by 145 percent between the years of 2001 and 2005. Doctors were understandably eager for some relief from such price gouging.

But since SB 3 passed, the average premium fell by only 7 percent. So even after successfully pushing for legislation that tramples on the rights of injured patients, doctors are still stuck paying exorbitant premiums for coverage that they must have to practice.

In addition to high premiums, health care professionals in Georgia only have a limited number of liability insurers to choose from. Information from the Insurance Commissioner’s office shows that since the passage of SB 3 in 2005, competition in Georgia hasn’t increased. That year, there were 139 licensed medical liability insurers in Georgia. In 2009, there were 138.

In 2005, the largest insurer of doctors, MAG Mutual, had 41.1 percent of the market. MAG Mutual is still the largest, and now controls 40.8 percent of the market.

If the legislature wants to reduce malpractice premiums, they can start by taking steps to reduce malpractice.

According to the Institute of Medicine, medical errors kill roughly 98,000 people in America every year. Simple measures like requiring doctors and hospitals to utilize checklists during procedures will reduce preventable harm. Additionally, a uniform electronic medical records requirement will allow health care providers to get accurate and timely information on patients, reducing the likelihood of errors.

SB 3 failed miserably at reducing liability insurance premiums and increasing competition, but it was wildly successful at limiting our fundamental rights. Our state and U.S. constitution guarantee that people who are harmed by others have a right to a trial by jury. But by passing SB 3 in 2005, the legislature took away the jury’s ability to make a decision based on the facts.

For victims of medical malpractice and their families, caps on damages is really a trial by the 2005 Georgia Legislature, which set an arbitrary cap of $350,000 on non-economic damages.

Consider the case of Betty Nestlehutt, who was severely harmed through medical negligence. After hearing testimony and seeing the evidence of Mrs. Nestlehutt’s permanently disfigured face, the jury returned a verdict that was higher than the one-size-fits-all cap imposed by SB 3.

That law mandates that a victim of malpractice, no matter how egregious their injury, cannot recover more than the cap set by the legislature, thus ignoring the ability of the jury to render a fair decision. It substitutes the judgment of the 2005 legislature for that of the jury. Even if Mrs. Nestlehutt had lost her life, the negligent defendant would only be liable for $350,000 in non-economic damages.

In a unanimous decision, our state Supreme Court overturned caps on damages, stopping the government from treading on the rights of malpractice victims and citizen juries. Our founding fathers recognized that heavy-handed government intervention poses a threat to individual rights. Thankfully, that core principle still stands in Georgia.

Angela Speir Phelps is executive director of Georgia Watch, a consumer watchdog group . Danny Orrock is deputy director.

[Note: This appeared Saturday, 01 May 2010, in the Savannah Morning News.]

“Under the current ethics proposal, a lobbyist could legally buy a legislator a first class trip to the tropics including airfare, accommodations at the Ritz Carlton, and room service – and it would not have to be disclosed. The people of Georgia deserve better than that,” said Angela Speir Phelps, Executive Director of Georgia Watch.

House Bill 920, which was introduced in January by Rep. Wendell Willard (R-Sandy Springs), would have placed monetary limits on gifts that public officials can receive from lobbyists. That bill was signed by over 40 House members, including members from both parties and an independent.

However, House leaders instead decided to use Senate Bill 17 as the vehicle for ethics reform. The current version of SB 17 does not include a limit on gifts to elected officials, thereby leaving the door wide open for moneyed special interests to continue to provide gratuities to those elected to serve the people.

“It’s hard for the voice of the little guy to be heard over the din created by unrestricted gifts from special interests,” Phelps said. “If the legislature wants to substantively change the culture in state politics then they should do the right thing and clamp down on practices that are questionable at best.”

SB 17 is awaiting action in the House Rules Committee, which will decide when to send it to the floor for a vote. After that, the House changes will need to be approved by the Senate.

Nestlehutt v. Atlanta Oculoplastic Surgery, P.C, from Fulton County State Court, highlighted how caps on damages fundamentally restrict the constitutional rights of those who have been harmed by a healthcare provider. The malpractice case was brought by plaintiff Betty Nestlehutt, who is represented by attorneys Adam Malone and Frank Ilardi.

Betty Nestlehutt and her husband of more than 50 years worked together in their real estate business. Betty handled most of the client interaction for the firm, and she eventually noticed that many potential customers were going to younger agents. Concerned with the bags under her eyes and lines around her mouth, Betty Nestlehutt eventually decided to schedule a consultation with Dr. Harvey P. Cole of Atlanta Oculoplastic Surgery, P.C. Even though Betty was 71 at the time, Dr. Cole recommended a full facelift as well as a battery of other surgical procedures.

The combination of procedures was risky for someone of Betty’s age. The surgery severely impacted the blood flow to her face. After several weeks, the skin on Betty Nestlehutt’s face began to die and fall off.

“Betty Nestlehutt was the face of her real estate business,” Malone said. “Her face was so horrifically disfigured that she was no longer able to even leave her house. The pain she experienced over a long period of time is difficult to comprehend. Photographs of her disfigurement are too gruesome for public distribution. The damage is permanent.”

The case was heard in Fulton State Court before a jury of 12 citizens. After hearing the testimony and seeing the evidence, they returned a verdict in favor of the Nestlehutts. The jury granted recovery for past and future medical expenses and concluded that the severe impact to Betty Nestlehutt’s quality of life warranted $900,000 in “non-economic” damages. However, this was more than the $350,000 cap on noneconomic damages in the 2005 law, which overrides the judgment of a jury that has been presented with the facts.

Judge Diane Bessen ruled that the statute capping a jury’s verdict was unconstitutional. The decision was appealed by the defendants to the Georgia Supreme Court. After hearing arguments in the fall of 2009, the Supreme Court agreed with Judge Bessen and ruled the statute unconstitutional.

“We applaud the Justices on our Supreme Court and their decision which appropriately concluded that a one-size-fits-all predetermined cap on damages violates protections guaranteed by the Georgia Constitution,” said Danny Orrock, Deputy Director of Georgia Watch. “The decision favors the protection of patients and their constitutional rights. It restores the promise of justice for all and the rights of all Georgians — young and old, rich and poor — to access the courts. These are guarantees set forth by our Constitution that were stripped away in 2005.”

Georgia Watch is keeping a keen eye on Atlanta Oculoplastic Surgery, P.C. v. Betty & Bruce Nestlehutt at the State Supreme Court that is challenging the cap on non-economic damages in the 2005 tort reform law. Non-economic damages are appropriate in cases where the jury wishes to compensate the injured party for harm that goes beyond lost wages or work opportunities. Pain and suffering, loss of normal marital relations (consortium), and physical injury or disfigurement are all non-monetary losses that fit in this category. Not surprisingly, amounts of non-economic damages can vary widely among cases and jurisdictions.

The Nestlehutt case involves a 71 year-old woman who sought the services of a plastic surgeon. Having discussed a range of procedures with Mrs. Nestlehutt, the doctor recommended that she undergo both a full facelift and laser resurfacing simultaneously despite the significant risks that this posed to a patient of her age. Serious problems soon arose. The two procedures drastically reduced the blood flow to Mrs. Nestlehutt’s face, and her skin was severely damaged. Tragically, the ordeal left her permanently disfigured.

The jury returned a verdict in favor of the Nestlehutts in the total amount of $1,265,000, most of which constituted non-economic damages: $900,000 for Mrs. Nestlehutt’s pain and suffering and $250,000 for Mr. Nestlehutt’s loss of consortium. The defendant Oculus contended that this was a misapplication of Georgia law and that the total amount of the Nestlehutts’ non-economic damages should be capped at $350,000, thus resulting in a total judgment of $465,000. The trial court refused this interpretation and struck the law down as unconstitutional. The defendant Oculus then appealed to the Supreme Court of Georgia.

Georgia Watch submitted an amicus brief in this case arguing that the law violates the prohibition in the Georgia constitution against “special laws” that grants status or privilege specifically to a favored group (such as healthcare providers). We have consistently been opposed to caps because this law favors certain groups over others. People who have a higher wage-earning potential – such as lawyers, doctors, and business executives – stand to receive a considerably higher amount of total damages than someone with a smaller income. Caps mean that the life or well-being of a person who is retired or whose work does not earn a salary, such as a homemaker, will be valued considerably less by a court.

Beyond placing a value on human life, Georgia’s caps provision bars access to the courthouse for some individuals. If a person cannot find a lawyer willing to take a case which will be arbitrarily capped by law, then they have effectively been shut out of the civil justice system. This amounts to a violation of the Seventh Amendment in the Bill of Rights, which guarantees every citizen a right to trial by jury for civil disputes over $20.

Georgia Watch will continue to fight for the patient who has been injured or killed through no fault of their own. Please stay tuned to Georgia Watch and our Court Watch program for info on how the Nestlehutt decision impacts your family.

Georgia Watch’s Court Watch has issued its annual report analyzing consumer-related decisions issued by the Georgia Court of Appeals and the Supreme Court of Georgia.

The “2008 Annual Report” identifies and profiles the most noteworthy consumer-related decisions released by the appellate courts throughout the year, and identifies emerging trends.

“Many of the decisions reached by the state Supreme Court and Court of Appeals significantly impact the rights that consumers have under law,” said Georgia Watch Executive Director Angela Speir Phelps. “Georgia Watch launched this project to provide ongoing, thoughtful, fact-based analysis.”

Notable consumer cases discussed include:

• Ferrari v. American Home Products
Federal vaccine law does not preempt state law, will not bar a claim brought by a consumer in state court.
• Amu v. Barnes
“New injury” exception is still valid and applies to plaintiff’s case
• Mason v. The Home Depot, Inc.
Georgia’s 2005 Tort Reform Act validly requires a civil litigant to meet a higher threshold to introduce expert testimony than the previous standard, which is still applied to criminal cases

“Generally speaking, Georgia laws are not consumer-friendly,” Court Watch Fellow Mike Rodgers said. “As this report demonstrates, our courts generally follow those laws unless they clearly run afoul of the state or federal constitution.”

The Court Watch Fellowship is a collaborative effort of the 2008 Court Watch Fellowship recipient and primary researcher, Mike Rodgers, and the Court Watch Advisory Committee, which includes two members of the Executive Committee of the State Bar of Georgia Board of Governors.

Read the full 2008 Court Watch Report.

Court Watch has released its first annual report analyzing consumer-related decisions issued by the Supreme Court of Georgia and the Georgia Court of Appeals.

Contributors to the research and production of this report include 2007 Court Watch Fellowship recipient Nathan Gaffney and the Court Watch Advisory Committee.

The “2007 Annual Report” identifies and profiles the most noteworthy consumer-related decisions released by the appellate courts throughout the year, and identifies emerging trends.

Notable consumer cases discussed include:

• Glenn v. State, a case in which the court upheld Georgia’s Payday Lending Law. Two individuals convicted of issuing payday loans argued that the statewide ban on payday lending was unconstitutionally vague and did not specifically prohibit the schemes they utilized in issuing loans, such as a “sales-leaseback” of a cell phone or coffee maker. The lenders also claimed they were not subject to the ban because they were located out-of-state.

• Kaminer v. Canas, in which the court upheld the two-year statute of limitations for medical misdiagnosis, regardless of futures failures to properly diagnosis, even in the presence of a patient’s additional or significantly worsened symptoms. In Georgia, a claim must be filed within two years of the date of the first misdiagnosis, whether or not the patient knows they have been misdiagnosed. In Kaminer v. Canas, the patient unsuccessfully argued that repeated misdiagnosis over a decade of treatment by multiple medical providers should have restarted the statute of limitations.

• Dees v. Logan, in which the court established that insurance companies are prohibited from creating offset clauses to reduce the amount owed to drivers who purchased uninsured motorist (UM) insurance. Offsets deny policyholders the benefits already purchased that are needed to cover medical and property damage resulting from an accident with an underinsured driver. The court ruled that insurance policies containing offsets for personal injury benefits are in conflict with Georgia’s Uninsured Motorist Act. This year, the Georgia General Assembly responded to this decision by passing Senate Bill 276m, which expressly permits insurance carriers to use offsets for workers’ compensation benefits, effectively overturning part of this decision. SB 276 also expanded drivers’ access to UM coverage.

“Any contention that our appellate judges are activists who stray from the letter of the law is not supported by these decisions concerning consumer rights,” said Tom Stubbs, Court Watch committee member who is also the founder and first chair of the State Bar Consumer Law Section as well as a member of the Executive Committee of the State Bar of Georgia Board of Governors. “Indeed, even when statutes can reasonably be interpreted in different ways, our courts have a pronounced bent not to interpret them so as to enhance protection of consumers in our state.”

Court Watch is an ongoing project of Georgia Watch.

Senate Bill 3 limits what a jury can compensate any victim injured as the result of medical malpractice for physical loss and disability to $350,000 – even if the negligence kills a loved one. This one-size-fits-all approach brutally affects retirees, veterans, stay-at-home parents and anyone else who does not work or works for modest pay.

The controversial bill also takes away the rights of patients injured or killed in any of Georgia’s emergency rooms because of clear negligence. The ER immunity provision of the law requires patients to prove “gross negligence,” which means proving that their medical provider willfully and knowingly mistreated them. This is virtually impossible to prove in an emergency setting, after the fact.

What’s more, the law contains several smaller provisions that have combined to make it almost impossible for victims of medical malpractice to find justice in a courtroom. But since the law was signed in 2005, several of those smaller provisions have been struck down as a violation of Georgia citizens’ constitutional rights, or are awaiting a ruling from a higher court. Georgian’s whose cases actually make it to the courtroom may only seek compensation for “non-economic damages”.

Non-economic damages are those which cannot be easily calculated, but are recognized by the courts as having value. Among the considerations for non-economic damage awards are the plaintiff’s pain and suffering, disfigurement, loss of enjoyment of life and other intangible harms. Hospitals and medical associations argue that restrictions, or “caps”, on damages are necessary to help control their insurance premiums, which makes healthcare more affordable for all. They also assert that the caps encourage more doctors to practice in some states, which improves the overall healthcare offered in that region.

However, it is important to note that not only does the statute place a cap on how much a medical facility or physician may be required to pay in non-economic damages, it also places a cap on the amount which a plaintiff may receive. There are different caps on damages for suits involving just one facility and those involving multiple facilities. Thus, even if a patient has been the unfortunate victim of a malpractice incident that resulted in untold pain and suffering, she may receive up to only $700,000 in non-economic damages as a plaintiff, regardless of how many different medical facilities may be responsible for her injuries, or even how severe those injuries may be.

However, in April 2008, Fulton County court judge Marvin S. Arrington Sr. overturned the damages cap on constitutional grounds. The case in which the statute was successfully challenged involved Cheon Park, a 59 year old restaurant owner who fell from a ladder at his home in 2006. An ambulance took Park to WellStar Douglas Hospital where he complained of pain in his neck, arm, shoulder and pelvis. Park was x-rayed, treated for a dislocated shoulder and discharged that same day. He was still in severe pain when he left the hospital; so much so that he required the help of hospital staff and his family to help him into his automobile.

Park’s pain grew worse, and he began exhibiting symptoms consistent with neurological damage. He was taken to Grady Hospital three days later where x-rays showed that the damage incurred by Park was much more than a dislocated shoulder. In fact, Park’s spine was so badly damaged that he is now a quadriplegic, with no use of his legs and only limited use of his arms.

Judge Arrington’s order of the court noted that the statute did not satisfy the guarantee of equal protection under either the Georgia or Federal Constitution. Equal protection guarantees that government will treat all similarly situated people the same. Judge Arrington wrote, “Persons suffering the exact same personal injuries at the hands of other tortfeasors—including other professionals—are not subject to such caps.” Thus, the government is treating certain civil litigants differently based solely upon the type of claim they file. Such an act runs afoul of the Georgia constitution.

Judge Arrington attacked the law on another ground, as well: a plaintiff’s right to a jury trial. Juries are considered an essential component of the judiciary. As such, the ruling of a jury is given great deference. This is especially so in tort law, where juries are asked to determine both liability and damages. The Act’s evasion of this constitutional principle was also noted by Arrington: “[A] fundamental right is involved in this case if for no other reason than the fact that the jury’s authority to award the amount of damages that it concludes to be appropriate for non-economic injury is limited by the caps.”

The principle of separation of powers, though seemingly unaddressed by Judge Arrington, has also been used to strike down caps on non-economic damages in other states. Where any one branch of government invades the province of another, that invasion is considered to be a breach of the separation of powers doctrine. Such a breach runs afoul of both the Georgia and Federal Constitution. For example, the Illinois Supreme Court held unconstitutional a cap of $500,000 for non-economic damages in medical malpractice cases on the basis that the legislature substituted its judgment for that of the jury and the courts. A similar comparison may be made to Georgia’s cap on non-economic damages.

The case, Park v. WellStar, No. 2007CV135208, may be appealed to the Georgia Supreme Court.

While the courts are cutting out the unconstitutional parts of SB 3, some groups are working hard to protect the law. In a recent article on election tampering, the Atlanta Journal-Constitution reported that, “The Safety and Prosperity Coalition, according to its Web site, was formed largely to guard Georgia’s 2005 tort reform, limiting liability for businesses when they are sued, from erosion in the courts. The group, which could channel unlimited funds into television ads and other efforts to influence voters … had raised a reported $318,500 by the end of September. Last week, it began airing its first ad … on network TV.”

If you thought the fight over tort reform in Georgia ended with the passage of Senate Bill 3, think again. In many ways, it has just begun.

Cowsert is a floor leader for Gov. Perdue, who has claimed that SB 101 would help attract pharmaceutical companies to Georgia and create new job opportunities.

“This bill lets drug companies off the hook, plain and simple, even if the product hurts or kills someone” said Georgia Watch executive director Allison Wall. “Georgians would have no recourse, no hope of accountability, period.”

The only state to implement this type of legislation is Michigan, whose unemployment rates were the highest in the nation at the beginning of 2009. According to some Michigan lawmakers, pharmaceutical companies have actually moved out of the state since the passage of their drug immunity law in 1995.

“This bill was touted in Michigan as a job creator,” said John LaMacchia, aide to Sen. John Gleason (D-Lansing). “However, since its enactment, the presence of pharmaceutical companies has shrunk. The large Pfizer facility in Ann Arbor down-sized and no new companies are moving in,” he said. Gov

Not only have 2,100 jobs been lost after the Pfizer plant in Ann Arbor closed, but 250 more were lost when the company’s plant in Kalamazoo down-sized. It’s unclear to me why Pfizer is leaving MI – but what is apparent is that pharmaceutical companies don’t let lawsuit immunity dictate their operations and therefore SB 101 will probably not encourage Big Pharma to move to Georgia.

In recent years, Vioxx, fen-phen and Bextra, among other FDA-approved drugs, were recalled after harming or killing patients. Before being removed from shelves in 2004, Vioxx injured at least 139,000 people.

“Essentially, this is a desperate bid for new biotech business at the expense of our legal rights,” said Wall. “That’s a dangerous gamble for the Governor, risking the health and safety of Georgians against the interests of corporations.”

Tort reform refers to proposed changes in the civil justice system that would reduce tort litigation or damages. Tort is a system for compensating wrongs and harm done by one party to another’s person, property or other protected interests. Tort reform advocates like Georgia Watch,  focus on personal injury in particular.

Medical Malpractice

Current Georgia law shields negligent members of the medical community from accountability for those errors, and prevents innocent patients from achieving the justice they deserve. Georgia’s is the most restrictive law in the nation. Senate Bill 3 works against consumer rights and for doctor wrongs. To read more click here.

Drugmaker Immunity

Despite decades of dangerous recalls and fraudulent drug trials related to FDA-approved drugs and medical devices, Sen. Bill Cowsert (R-Athens) filed Senate Bill 101 which would extend immunity from civil lawsuits filed in Georgia to Georgia-based pharmaceutical companies and manufacturers of FDA-approved products. To read more click here.