Medical malpractice

In 2005 , the Georgia General Assembly delivered a present to Big Insurance, the hospital and medical lobbies, and corporate giants Georgia Pacific, Home Depot, Georgia Power and Coca-Cola. It was called Senate Bill 3, and it severely changed the state’s justice system.

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.

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