Atlanta Injury Law Blog

In Atlanta, Superior Court Judge Marvin Arrington issued an order on Wednesday that the legislative cap of $350,000 for noneconomic damages such as pain and suffering is unconstitutional because it gave special protections to the medical profession. This meant people injured by doctors had less protection than those injured by any other cause.

The cause arose out of the failure of doctors at the hospital in my hometown, Douglasville, to diagnose a broken neck, resulting is the patient becoming a quadriplegic.

Judge Arrington ruled that limiting the caps meant that in many cases, large jury awards would be issued only to would be issued only to wealthy people who could point to the loss of large incomes. "The statute effectively puts substantial limitations on the rights of the poor and middle class to recovery while leaving the right to virtually unlimited recoveries unimpeded for the wealthy," Arrington said. "The disabled manager of a hedge fund, a corporate CEO, an entertainer or such other person whose income is in the tens of millions of dollars has a claim under Georgia law that would dwarf the amount awarded in any case for pain and suffering."

The Medical Association of Georgia placed primary importance on the damages cap as the centerpiece of its tort "reform" legislation in 2005. I expect this ruling will stir the political pot again, putting renewed pressure on the Georgia Supreme Court. My hunch, for  better or worse, is that even though several other state supreme courts have held such damages caps unconstitutional, Judge Arrington's ruling may be reversed in the Georgia Supreme Court.

Occasionally we get calls from potential clients who are interested in a possible malpractice suit based on alleged malpractice in a hospital emergency room. Even if the medical treatment appears to fall short of an appropriate standard of care, we have to explain to them that as a practical matter there is no case. The Georgia General Assembly chose in 2005 to change the law so that ER staff cannot be held liable for damages "unless it is proven by clear and convincing evidence that the physician or health care provider’s actions showed gross negligence."  The most common definition of "gross negligence" is "reckless disregard for the safety of a patient," which is almost impossible to prove in the emergency room.

The practical effect is virtual immunity from civil liability for any ER physician who cannot be clearly proven to be drunk or on drugs at the time of the incident. Virtually no attorneys are taking ER liability cases in Georgia  because even if it is a legitimate case of malpractice, and even after you invest hundred of hours and $50,000 to $100,000 in out of pocket expense, you still almost have to prove that the doctor was drunk or intended to harm the patient.

Now Senate Bill 286 would replace "showed gross negligence" with "failed to meet the applicable standard of care."  That is still a very tough standard to meet, and the defense would probably still win 80% of the time, but in an egregious case it would be at least possible to bring a case.  It is supported by at least 15 state senators, 10 Republicans and five Democrats, including the Senate majority and minority leaders. However, the Medical Association of Georgia and Georgia Hospital Association strongly oppose it.

The U.S. Centers for Medicare and Medicaid Services has released a list of the nation's 54 worst nursing homes.  Three in Georgia are on the list:

•  Laurel Baye Healthcare of Lake Lanier, in Buford
•  The Place at Augusta, in Augusta
•  Shoreham at Marietta, in Marietta

Though I have not personally encountered it yet, there apparently has been a recent proliferation of a defense tactic of offering to represent witnesses at no charge in order to limit the plaintiff attorney's access to the witnesses.  This may be particularly a problem in medical malpractice cases but it could occur in any type case.  In a recent Georgia case against a nursing home and its CEO, defense counsel contacted witnesses who had been subpoenaed for depositions and offered to represent them at no charge. The defense lawyer then wrote to plaintiff's counsel stating that he represented the witness so the plaintiff's attorney could have no further contact with the witness without going through the defense lawyer.  On October 24th, Judge Frank Jordan of the Chattahoochee Judicial Circuit entered an order finding this created a conflict of interest in violation of Rule of Professional Conduct 1.7 and disqualifying the defense lawyer from representing the non-party fact witnesses.  However, the court stopped short of disqualifying the defense firm from participation in the case or precluding the defense from contesting the issues on which those non-party witnesses would testify.  The Butler Wooten firm did a great job of stopping that defense tactic in its tracks.

A study published yesterday in The Archives of Internal Medicine, reached the conclusion that doctors’ disclosures about themselves fail to either help patients or establish rapport with the patients. Rather, the study showed that many doctors waste patients’ time and lose their focus in office visits by interjecting irrelevant information about themselves. 

The researchers started with the hypothesis that some self-disclosure by physicians had  a potentially positive aspect to building a doctor-patient relationship.  To their surprise, patients were not comforted and conversations got off track. Four out of five times when a doctor interjected personal information, the doctor never returned to the topic under discussion before the interruption. However, the researchershope that  doctors do not conclude that the best course is to clam up completely about themselves.

I wonder if this is also applicable to lawyers' interviews with clients, and if I should cut out some of the personal conversation about personal experiences that seem -- to me at least -- relevant to a client's situation.  However, in the long duration of most of my cases, I still think there is value in developing genuine friendship with clients that goes beyond the nuts and bolts of litigation.

Two articles in the May 9th  New York Times highlight a pattern of pharmaceutical industry payments of doctors being linked to dramatically increased prescriptions of questionable drugs.

First, one report indicates that pharmaceutical companies have paid hundreds of millions of dollars to doctors in return for prescribing anemia drugs, the safety and effectiveness of which the FDA questions. . The anemia drugs are injected or given intravenously in physicians’ offices or dialysis centers. Doctors receive the rebates after they buy the drugs from the companies, but they also receive reimbursement from Medicare or private insurers for the drugs, often at a markup over the doctors’ purchase price.  Just  one group of six cancer doctors received $2.7 million from Amgen for prescribing $9 million worth of its drugs last year.

Second, an analysis of records  in Minnesota provides documentation of how financial relationships between doctors and drug makers correspond to the growing use of atypical antipsychotics in children, despite profound risks and almost no approved uses for minors.  From 2000 to 2005, pharmaceutical industry payments Minnesota psychiatrists rose more than sixfold, while  prescriptions of antipsychotics for children in Minnesota’s Medicaid program rose more than ninefold.  The New York Times data suggests that those who took the most money from makers of atypical antipsychotics medications  tended to prescribe the drugs to children the most often.

Doctors insist that payments from drug companies do not influence what they prescribe for patients, but the intersection of money and medicine, and its effect on the well-being of patients, has become one of the most contentious issues in health care.  This presents a real dilemma for patients who want and need to trust their physicians, but who are uninformed about the scientific studies about medications and the financial relationships between pharmaceutical companies, researchers, medical educators and prescribing physicians.

A report which will be published in May in the Michigan Law Review.confirms what most tort law practitioners have long recognized: the defense has a strong advantage in medical malpractice trials.

Philip Peters Jr., of the University of Missouri-Columbia School of Law, concluded that juries treat doctors favorably, "perhaps unfairly so," and are more likely than even fellow physicians to defer to a doctor's opinion. Peters found that most malpractice suits end in defense verdicts, and that the cases that go to trial tend to be the weakest ones, since those with strong evidence usually settle before trial.In an examination of win rates, Peters found that 27 percent to 30 percent of filed medical malpractice suits end in a plaintiff's verdict, the lowest success rate of any type of tort litigation.

In the study, jurors found in favor of physicians significantly more often than independent reviewing physicians would have.  The study asked independent physicians to evaluate incoming claims and rate them as defensible, indefensible or unclear. Plaintiffs won 21 percent of those cases rated as defensible, 30 percent of those rated unclear and 42 percent of those rated indefensible. Thus, plaintiff wins were in the minority even in the most meritorious cases.

Frankly, I wouldn't think the plaintiff's win rate is as high in Georgia as the 27 - 30% rate cited in the study.  For years I have heard that the defense wins 80% of medical malpractice trials in Georgia, and have seen no data to the contradict that.

"Both piecemeal reforms and more fundamental alternatives to malpractice litigation should not be driven by the mistaken assumption that juries treat physicians unfairly," Peters wrote. "Although the current system of resolving malpractice claims has many shortcomings, neither randomness nor favoritism toward injured patients is among them."

A new study reports that surgeons who play video games at least three hours per week made about 37 percent fewer mistakes in laparoscopic surgery and performed the task 27 percent faster than their counterparts who did not play video games.Laparoscopic surgery — using a tiny camera and instruments controlled by joysticks outside the body — is performed on just about any part of the body, from an appendix to the colon and gall bladder. Kurt Squire, a University of Wisconsin researcher of video game effects on learning, said that "with a video game, you can definitely develop timing and a sense of touch, as well as a very intuitive feel for manipulating devices."

I expect smart kids will start responding to parents' complaints about excessive video gaming by saying they are just preparing for careers as surgeons. Whatever.

Today's Washington Post includes an article about a case arising from  the death of a college freshman under the care of poorly supervised, overworked and highly fatigued young doctors. The resulting malpractice litigation set in motion a series of reforms, most notably a series of work hour limitations instituted by the Accreditation Council on Graduate Medical Education (ACGME), that have revolutionized modern medical education.  The result will likely save countless lives by making the clinical training of young doctors less of an exercise in hazing and sleep deprivation which leads inevitably to gross errors of judgment.

Yet another state Supreme Court has held that an arbitrary cap on damages violates the state constitution. 

In Arrinton v. ER Physicians Group, APMC, the Louisiana Third Circuit Court of Appeals has held that a $500,000.00 cap on medical malpractice damages was unconstitutional as failing to provide the plaintiffs an adequate remedy” as guaranteed under the provisions of La.Const. art. 1, § 22. The court cited a long list of cases in other states holding such caps unconstitutional under state constitutional provisions.

In Georgia, the tort reform lobbyists won passage in 2005 of a $350,000 cap on noneconomic damages in medical malpractice cases. They won with illusory promises that doctors' malpractice insurance premiums would go down.  The only way premiums will go down is if the legialature passes a law requiring disclosure of insurance company finances and underwriting.

Meanwhile, the folks who hate the civil justice system and can't stand the idea of little guys having access to justice continue to organize well-funded campaigns to pick off state Supreme Court justice around the country and intimidate the rest of our judges. See Justice for Sale in West Virginia?  In Georgia, we see that in the campaign of Mike Wiggins, who was an associate at two large law firms and a political appointee.  He has never tried a case in a trial court and never argued a case in a Georgia appellate court. However, despite a complete lack of courroom experience, he is waging a campaign with virtually  unlimited  corporate funding to unseat Justice Carol Hunstein.  He apparently picked her because she is "vulnerable," e.g., a one-legged, non-politcal woman judge with a Jewish sounding name.

I certainly have some sympathy for my doctor friends and businessman friends who feel vulnerable in the court system.  However, the answer is not to impose a one-size-fits-all cap on damages, to abrogate state or federal constitutional law, or to terrorize independent, impartial, nonpartisan judges.  Remember, my friends in the business and medical communities, while you may think you are more likely to become a defendant, the reality is that you or a family member may just as likely become a victim of a grievous injury.  If you take away the civil justice system today, it won't be there for your family tomorrow.

When the Georgia General Assembly passed Senate Bill 3 -- the "tort reform" conglomeration -- in February 2005, most of the legislators hadn't even read the entire bill, most of its provisions were not discussed in any detail, and hardly anyone understood it. To say it had a lot of poor draftsmanship is an understatement.  I heard one prominent Republican legislator privately describe it has having been "written with a crayon."  Since then bits and peices of the legislation have been been held unconstitutional by trial or appellate courts, and more likely meet the same fate.  Increasingly, I hear legislators who voted for it in the rush of the moment saying things like, "we went too far," "we didn't understand what was in the bill," etc. 

It will take a few years, but I predict that the problems with the bill will be largely repaired.  A cap on noneconomic damages in medical malpractice cases will likely remain, as the political support for it in the medical community is mighty strong.  However, as in California after it adopted such a cap in the 1970's, we may see a requirement for financial disclosure by insurance companies to support premium rate increases.

Likewise, the replacement of "joint and several liability" with "proportional liability" will be politically difficult to change.  However, if the problems with the new rule are explained to legislators, perhaps there could be some modification.

The Daubert rule on expert testimony is here to stay, but the version of it in the State Bar's proposed new Georgia Evidence Code makes more sense, both procedurally and substantively, than the self-contradictory scissors and paste job in S.B. 3.

The offer of judgment rule in S.B. 3 is such a miscarriage that I hardly ever hear of anyone actually using it.  I know that most of the insurance companies are afraid to use it in significant cases out of concern that it will be they rather than the plaintiffs who it will hurt.  It may take a couple of years, but I expect that a more sensible and workable version of the offer of judgment rule will be passed.

A lot of the other stuff that was included in S.B. 3 will bite the dust over the next couple of years.

Hospital-acquired infections are a major concern in healthcare facilities, affecting at least 2 million patients annually and resulting in extended durations of care and substantial morbidity. Such infections are estimated to cause or contribute to 88,000 deaths annually in the US, as well as requiring nearly $5 billion in treatment costs. The incidence of infections in acute care facilities is about 9.8 infections per 1,000 patient care days and in long-term care facilities, approximately 7.2 infections per 1,000 resident care days. Maximizing Hand-Hygiene Compliance to Improve Outcomes: A New Tool for Infection Control

Last month I had occasion to spend a couple of weeks in and around Massachusetts General Hospital in Boston, where my daughter was a patient. As a teaching hospital of Harvard Medical School, Mass General has always been a leader in setting the highest standard of care in medical practice.

One simple thing I observed struck me as different from many other hospitals I have visited. Outside the door of every patient room, and at every entrance to a patient floor, there was a conveniently located dispenser of hand sanitizer. Every time a doctor or nurse entered my daughter's room, they were rubbing hand sanitizer on their hands. After surgery, prophylactic antibiotics were prescribed for a period of time after discharge.

In most hospitals I have visited, if there is a hand sanitizer dispenser available it tends to be mounted by a sink in the patient's room and seldom used. My daughter went from Mass General to another hospital in another state for another surgery. I don't intend to pursue it or go to the trouble to closely analyze it, but I did note that the degree of fanatical attention to infection prevention we saw at Mass General was not followed at the second hospital. A few days after the second surgery she did get a staph infection and an epidural abscess in the incision site of the first surgery.

A lot of doctors consider hospital acquired infections, such as staph infections, unavoidable risks of any hospitalization. Some think prevention is attainable.

Those Harvard doctors are pretty smart. It would be interesting to compare the infection complication rates at Mass General with that of other hospitals where those rigid precautions are not followed.

The Centers for Disease Control Guideline for Hand Hygiene in Healthcare Settings says that "If hands are not visibly soiled, caregivers should use an alcohol-based waterless antiseptic agent for routinely decontaminating hands." That's what they do at Mass General, and it's what I'm doing now at home in changing my daughter's IV pump every day, whether the nurses tell us to or not.

The Georgia Court of Appeals has held that an anesthesiologist committed negligence per se by allowing nurses who did not have advanced skills or training to administer narcotics to patients without consulting with a physician prior to administration in violation of O.C.G.A. § 43-34-26.1. See Groover v. Johnston, below.

Georgia law requires an affidavit from a qualified expert in order to file a medical malpractice case, and has stringent requirements for qualifications of such experts. It is virtually impossible to get a qualified expert within the state, so lawyers handling such cases generally start with the assumption that they will have to go out of state to find an expert willing to testify. Now, medical specialty boards are taking action to discipline and intimidate doctors who dare to testify against other doctors. While there may be extreme situations in which a professional organization would be justified in disciplining a member who gives completely off-the-wall testimony about malpractice, the potential for abuse is obvious. If an expert witness within an area of practice is required to make a case, and the professional organizations within the area of practice intimidate their members from providing truthful and accurate testimony, then the injured patient is denied access to justice in even the most meritorious cases.

This year the Georgia General Assembly adopted a $350,000 cap on noneconomic damages in medical malpractice cases. Noneconomic damages include physical and mental pain and suffering, permanent impairment, intangible value of life in a wrongful death case, etc. Today the Supreme Court of Wisconsin released a decision holding a similar Wisconsin statute unconstitutional, as there is no objectively rational basis for the cap. The full text of the decison appears below. Key quotes:

"Based on the available evidence, we cannot conclude that a $350,000 cap on noneconomic damages is rationally related to the objective of ensuring quality health care by creating an environment that health care providers are likely to move into, or less likely to move out of, in Wisconsin. The available evidence indicates that health care providers do not decide to practice in a particular state based on the state's cap on noneconomic damages."

"The evidence does not suggest that a $350,000 cap on noneconomic damages is rationally related to the objective of ensuring quality health care by preventing doctors from practicing defensive medicine. We agree with the non-partisan Congressional Budget Office's finding that evidence of the effects of defensive medicine was 'weak or inconclusive.'"

"The court must presume that the legislature's judgment was sound and look for support for the legislative act. But the court cannot accept rationales so broad and speculative that they justify any enactment. '[W]hile the connection between means and ends need not be precise, it, at least, must have some objective basis.'"

The rationale used by the Wisconsin Supreme Court would appear fully applicable in Georgia. We have some strong, principled Supreme Court justices in Georgia. Whether a majority of them will have the political courage to make such a forthright and sensible decision remains to be seen. But since Governor Perdue's House floor leader made an impassioned speech about the unconstitutionality of the cap, maybe we shouldn't expect the worst even from Gov. Perdue's recent appointee to the Supreme Court.

Plaintiff was entitled to a new trial on damages in his wrongful death action against the defendant doctor after his child was delivered stillborn, since the jury's award of zero damages after returning a verdict in favor of the plaintiff and his wife was contrary to the law and inconsistent with the evidence. See Court of Appeals opinion below.

Georgia law does not allow the unrepresented estate statute, O.C.G.A. § 9-3-92 to toll the ultimate statute of repose in medical malpractice actions by the period during which the estate is unrepresented. See Georgia Supreme Court opinion below.

A new study by Dartmouth College researchers suggests that huge jury awards and financial settlements for injured patients have not caused the explosive increase in doctors' insurance premiums.

The researchers said a more likely explanation for the escalation is that malpractice insurance companies have raised doctors' premiums to compensate for falling investment returns. See article.

Last week Judge Tony DelCampo in the State Court of DeKalb County held unconstitutional a provision of Georgia's new tort reform statute affecting venue in medical malpractice cases. Section 9-10-31(c) provides for a medical malpractice defendant to transfer venue to the county where a negligent act occurred. Judge DelCampo held that this provision violates the provision of the Georgia constitution that joint tortfeasors can be sued in the county of any one of the defendants. See Fulton County Daily Report (subscription) article as follows:

According to an article in the New York Times on 3/6/05, lawyers in states with caps on noneconomic damages have been largely successful in recasting damages to fit the available categories. The article is titled "Go Ahead. Test a Lawyer's Ingenuity. Try to Limit Damages." It cites a new study by Catherine M. Sharkey, a law professor at Columbia, to be published in the New York University Law Review in May. Prof. Sharkey analyzed jury verdicts in 22 states in 1992, 1996 and 2001. It did not consider cases settled out of court. It found that the median compensatory award in states with caps on damages was $324,000, compared with $387,000 elsewhere - figures that Professor Sharkey found were roughly equivalent after the data was adjusted for variables like the kind and number of plaintiffs and defendants, the percentages of local doctors and lawyers, and jurors' wealth and ages.

Senate Bill 3, effective 2/16/05, sets forth stringent new requirements as to who can testify as an expert witness in a medical malpractice case. There are several key provisions.

First, OCGA 24-9-67.1(c) requires that the expert witness have "actual professional knowledge and experience in the area of practice or specialty in which the opinion is to be given" as the result of "active practice of such area of specialty of his or her profession for at least three of the last five years, with sufficient frequency to establish an appropriate level of knowledge" or "teaching of his or her profession for at least three of the last five years as an employed member of the faculty of an educational institution accredited in the teaching of such profession, with sufficient frequency to establish an appropriate level of knowledge, as determined by the judge, in teaching others how to perform the procedure, diagnose the condition, or render the treatment which is alleged to have been performed or rendered negligently by the defendant whose conduct is at issue." In addition, the expert must have been "licensed by an appropriate regulatory agency to practice his or her profession in the state in which such expert was practicing or teaching in the profession at such time."

On the surface, this appears to make a lot of sense. The devil is in the details.

It appears that the experience requirement is more readily satisfied for doctors who teach in medical schools than for those who are in active practice, as they have to have taught 3 of the past 5 years, while practitioners have to have performed the same procedure, etc., with sufficient frequency in 3 of the past 5 years. However, since many medical school faculties are comprised of doctors who are actually employed by an affiliated medical practice group, there may be a hidden hook that would prevent using medical school faculty members as expert witnesses.

Whether or not it was intended, it appears that the statutory qualifications apply not only to standard of care testimony in a medical malpractice case, but also to causation and prognosis testimony by subsequent treating physicians.

Under the literal language of the statute, no defendant physician who lacks the requisite experience could give opinion testimony in his or her own defense.

The full text of this provision follows:

Senate Bill 3 caps noneconomic damages in medical malpractice cases at $350,000 against any defendant. If there are two medical facilities and at least one additional health care provider held liable, then the cumulative cap may reach a maximum of $1,050,000. The cap applies to "damages for physical and emotional pain, discomfort, anxiety, hardship, distress, suffering, inconvenience, physical impairment, mental anguish, disfigurement, loss of enjoyment of life, loss of society and companionship, loss of consortium, injury to reputation, and all other nonpecuniary losses of any kind or nature." It does not apply to medical and rehabilitation expenses, wages, earning capacity, income, funeral and burial expenses, or to the "value of services performed by the injured in the absence of the injury or death including those domestic and other necessary services performed without compensation."

Thus, the "full value of the life" of a retiree would be essentially limited to $350,000. The value of the loss of an athlete's leg, or emasculation of baby boy in a botched circumcision, both life-altering events with little monetary expense involved, is pretty well capped at $350,000 in medical malpractice cases.

SB 3 provides, with regard to causes of action arising after 2/16/05, that, "In an action involving a health care liability claim arising out of the provision of emergency medical care in a hospital emergency department or obstetrical unit or in a surgical suite immediately following the evaluation or treatment of a patient in a hospital emergency department, 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."

As a practical matter, this amounts to virtual immunity from any civil accountability for all health care personnel in a hospital emergency room setting, and to a large degree for obstetricians who admit their patients through the emergency department.

SB 3, effective 2/16/05, requires reporting of all medical malpractice judgments and settlements, in any amount, to the Composite State Board of Medical Examiners. Whenever there is a judgment or settlement of at least $100,000, and whenever a physician has a third judgment or settlement in any amount, the board must investigate the doctor's fitness to practice medicine.

Policing the medical profession to protect the public from bad doctors should be a good thing. It remains to be seen how this will be done in practice.

Previously, all judgments and settlements above $10,000 were reported to the Board and the National Practitioners' Database. Since all physicians' malpractice insurance policies require the policyholder's consent to settlement, the reporting requirement has made settlement of malpractice cases for more than a nominal amount extremely difficult in all but the most egregious cases, multiplying the trouble and expense of litigation in even meritorious cases. The new reporting requirement will likely make settlements even more difficult.

SB 3, effective 2/16/05, includes a provision that in the event of an "unanticipated outcome resulting from medical care" a health care provider's "statements, affirmations, gestures, activities or conduct expressing benevolence, regret, apology, sympathy, commiseration, condolence, compassion, mistake, error, or a general sense of benevolence" are not admissible in evidence. The word "fault" was deleted from that list in the Senate Judiciary Committee, and it remains to be seen how that omission might be construed in determining the finer points of legislative intent. See the full text of the section below.

SB 3, effective in all cases on 2/16/05, requires that the plaintiff in a medical malpractice case provide with the complaint a signed authorization for defense counsel to obtain all protected health information in medeical records, and to have ex parte discussions with all of the plaintiff's (or plaintiff's decedent's) treating physicians.

This section may violate the federal HIPAA law, which preempts all conflicting state laws. It does not require a particular form of authorization document, does not require that the authorization be open-ended, and does not require that prior treating physicians comply with it. Therefore, it is likely that plaintiffs will formally comply with the statute by providing authorizations with short-term expiration dates, while pointing out that it is preempted by HIPAA, that physicians responding to it may be in violation of HIPAA, and that all sanctions under the federal HIPAA law may apply.

Since 1987, Georgia has required that in any professional malpractice case that the plaintiff file with the complaint an affidavit from a member of the same profession stating how the applicable standard of care was allegedly violated. If the complaint was filed within ten days prior to expiration of the statute of limitation there was a 45 day grace period for filing the affidavit, and the grace period could be extended by the court. SB 3 eliminates the grace period, allows the defendant to the close of discovery to file a motion to dismiss due to a defective malpractice affidavit, and allows the plaintiff 30 days after service of the motion to cure the defect. See text below.