Atlanta Injury Law Blog

The tort reform legislation that passed the Georgia legislature in 2005 involved an unfortunate clash between the medical and legal professions. Then just a rank and file attorney handling catastrophic personal injury and wrongful death cases in metro Atlanta, and a back row member of the State Bar Board of Governors, I had no real leverage to do anything but join in futile protest. Some of my conservative friends in the legislature said they didn't like the bill either, but were unable to do anything but go along with party discipline.

But I felt at the time that there could have been consensus legislation, on which both sides could have signed off, if the right things could have been done a year or two earlier.  Friends on the other side of the divide expressed the same sentiment. Unfortunately, we had a political train wreck in which the bill that passed was loaded with some provisions that were contradictory or unconstitutional.

One of the provisions is to cap "noneconomic damages" (pain, suffering, loss of quality of life, etc.) at $350,000 in medical malpractice cases. The economic reality is that people who suffer catastrophic noneconomic damages, but without large economic loss, generally cannot hire a lawyer capable of competently handling their case. This is because it takes $50,000 to $100,000 of out of pocket expense, mostly for expert testimony and dealing with the other side's experts, to properly prepare a medical malpractice case for trial. Because few victims of malpractice can fund that kind of expense, lawyers typically have to front the expense. It is not a sane business decision to risk $100,000 of one's own money on a case where the maximum recovery is $350,000, as for the death of a homemaker or retiree due to malpractice.  A 40% contingent fee in a $350,000 recovery would be $140,000. The statistical probability of success at trial in even the most meritorious medical malpractice case is maybe 20%.  Even if a lawyer were willing to take that risk, and were successful, the net benefit to the hypothetical client would be only $110,000 out of $350,000, hardly an attractive proposition for lawyer or client.

Thus, the $350,000 cap on noneconomic damages effectively denies access to justice in cases where a person's life is destroyed or devastated, but the provable economic loss is relatively small.  If the legislature intended to deny justice to victims of catastrophic injury due to medical malpractice who are of modest means, there could have been more straightforward ways to do it. 

Yesterday the Georgia Supreme Court heard oral arguments in the case of Nestlehutt v. Alanta Oculoplastic Surgery, PC,  in which a trial court judge had held the cap unconstitutional.  Mrs. Nestlehutt was a real estate agent who found she was losing business to younger competitors, so she consulted a plastic surgeon about removing bags under her eyes and age lines around her mouth. The surgeon recommended simultaneous CO2 resurfacing and a full facelift. This was particularly risky in a patient of her age and complexion. To make a long story short, her face essentially fell off, leaving her with horrible permanent disfigurement such that she could hardly leave the house. The jury awarded $900,000 for the devastation of her quality of life.

Fulton State Court Judge Diane Bessen held that the $350,000 cap is unconstitutional because it violates right to trial by jury, equal protection of laws, and separation of powers.

At the Supreme Court, attorney Michael Terry argued for Mrs. Nestlehutt that the most egregious aspect of the cap is that it hurts the people who are injured the most. “No frivolous cases are affected by the cap,” said Terry. “This makes no sense. It is not rational.”

Defense attorney argued that, “The Legislature found there was a crisis” that justified the caps, Peters added, referring to lawmakers' findings that limits on medical malpractice awards were needed to help health care providers secure affordable malpractice insurance coverage."

Questions from the members of the Supreme Court gave little clue how they may be leaning, according to Alyson Palmer of the Fulton County Daily Report.

Perhaps the best outcome would be if the court unanimously held the damages cap  unconstitutional, and sent everyone back to the drawing board to come up with a different form of medical liability compensation system involving a genuine tradeoff between the legitimate concerns of doctors and patients.

 

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The tort reform legislation in Georgia continues to erode in the face of constitutional challenges. The latest chip in the armor is a ruling from Judge Anthony Alaimo, a legendary federal district judge in Brunswick. featured in The Sicilian Judge: Anthony Alaimo, an American Hero. The son of Sicilian immigrants, he was a bomber pilot who was shot down in the North Sea during WWII, was one of the POWs who inspired The Great Escape, and eventually made his way to Switzerland and Italy.  Speaking fluent Italian, he blended into the population, and at one point attended an opera where he sat next to a Gestapo officer.

With that background, you might guess that he has been a bold federal judge in south Georgia.  Now a Senior Judge well along in years, he remains as active and outspoken as ever.

Last month, Judge Alaimo entered an order holding unconstitutional the Georgia medical malpractice statute of repose, as applied to mentally handicapped plaintiffs.  The case involved alleged dental malpractice that led to a brain infection and severe mental disability. Deen v. Egleston, 2009 WL 368647 (S.D.Ga., 2009).  Here are the nuggets in the case:

•    Under Georgia law, the applicable medical malpractice statute of limitations is two years after the date on which the injury occurred. Ga.Code Ann. § 9-3-71(a).

•    Under Georgia's general statute of limitations rules, “[m]inors and persons who are legally incompetent because of mental retardation or mental illness, who are such when the cause of action accrues, shall be entitled to the same time after their disability is removed to bring an action as is prescribed for other persons.” Ga.Code Ann. § 9-3-90(a).

•    O.C.G.A. §  9-3-91 provides: “If any person suffers a disability specified in Code Section 9-3-90 after his right of action has accrued and the disability is not voluntarily caused or undertaken by the person claiming the benefit thereof, the limitation applicable to his cause of action shall cease to operate during the continuance of the disability.”

•    Georgia has three savings statutes prevent the statute of limitations from running against a person who is incapacitated because of their mental disability. See Lowe v. Pue, 150 Ga.App. 234, 234-35, 257 S.E.2d 209 (1979). Egleston notes that the state legislature has decreed that these general tolling provisions do not apply in cases of medical malpractice. Ga.Code Ann. §§ 9-3-71(a) & 9-3-73(b). An action arising out of the provision of dental services or diagnosis is a medical malpractice action. Ga.Code Ann. § 9-3-70.

•    O.C.G.A. §  9-3-73(b) provides, in pertinent part, that: “Notwithstanding [sections 9-3-90 & 9-3-91], all persons who are legally incompetent because of mental retardation or mental illness and all minors who have attained the age of five years shall be subject to the periods of limitation for actions for medical malpractice provided in this article [sections 9-3-70 through 9-3-74].”

 •    Georgia Code section 9-3-73(b) is unconstitutional, in that it treats mentally incompetent individuals differently when they have medical malpractice claims, as opposed to other causes of action.       

•    The legislature may not, consistent with equal protection principles, deny only this class of medical malpractice plaintiffs the projection afforded all other persons by the saving statute.... In doing so, [the statute] does not substantially further the legislative object of containing the costs of the medical injury reparations system because the number of malpractice claims brought by or on behalf of minors or mental incompetents is comparatively small.... At the same time, the statute operates to extinguish a cause of action of which the plaintiff, due to his disability, nay not have learned until after the limitations period has expired.

•    The purpose of tolling provisions for legal disability ... is to protect the rights of those who are not competent to do so themselves. These provisions recognize that the enforcement of an incompetent person's rights should not be `left to the whim or mercy of some self-constituted next friend.' "

•    Courts should undertake a robust, searching form of rational basis review where the challenged law discriminates against the mentally incapacitated.

•    To withstand rational basis review, legislation that discriminates against the mentally incapacitated must be rationally related to a legitimate government purpose.

•    Ensuring access to affordable healthcare is a legitimate legislative objective, but that aim is not reasonably furthered by discriminating against incapacitated adults' medical malpractice claims.

•    “A statute may be constitutionally valid when enacted but may become constitutionally invalid because of changes in the conditions to which the statute applies. A past crisis does not forever render a law valid.”

•    Experience and experimentation in the states has shown that medical malpractice lawsuits are not a major driver of skyrocketing healthcare costs. The Court doubts whether medical malpractice lawsuits were ever a real part of the healthcare problem, with respect to rising costs, in this country. The impetus behind the special legislation for medical malpractice cases appears to have been based on either misunderstanding of the problem of healthcare expenses, or an outright boondoggle. Although medical malpractice suits have been stifled, healthcare costs continue to soar. If malpractice lawsuits were a problem in limiting affordable, quality healthcare at one time, the facts no longer support the idea that lawsuits remain part of the problem. Study after study shows malpractice costs as averaging around one percent of healthcare costs, but expenses continue to rise at an alarming rate.

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Once again, we often hear from folks after their time has run out. Here's a question I got last week from a lady who waited way too long.

Q.  When I had my first child in 1994, the MD performed an episiotomy which caused severe nerve damage (sliced through tissue from vagina to rectum). I did not file suit at the time because I was hoping the problem would resolve. It is now 14 years later and the quality of life has suffered terribly due to damage incurred. Is it too late to file suit for damages?

A. Georgia has a rather strict two year statute of limitation in medical malpractice case. Nothing in your question suggests applicability of any of the narrow exceptions. Sorry.

 

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The $350,000 cap on noneconomic damages in medical malpractice cases, which was enacted by the Georgia legislature in 2005 as part of an omnibus tort reform bill  known as SB3, faces another constitutional challenge this week. Yesterday, Fulton County State Court Judge Diane Bessen held the cap unconstitutional in the case of Nestlehutt v. Atlanta Oculoplastic Surgery. 

The grounds for the holding in Judge Bessen's 22-page order include:

• Violates right to trial by jury guaranteed by the Georgia Constitution. The applicable Georgia constitutional provision states: “The right to a trial by jury shall remain inviolate, except that the court shall render judgment without the verdict of a jury in all civil cases where no issuable defense is filed and where a jury is not demanded in writing by either party.” Ga. Const. Art. I, Sec. I, Para. XI.  Where a right to jury trial existed at common law at the time of adoption of the Constitution, the Supreme Court has long held that where the legislature so clogs the right to jury trial with restrictions that it is directly or indirectly abolished, then that act is unconstitutional. The U. S. Supreme Court has recognized, relying upon common law cases back to the 1700's, that it is the sole province of the jury to determine damages. "A limit or cap on noneconomic damages, however, invades the right to a jury trial by usurping one of the fact-finding responsibilities of the jury. . . . The imitations imposed by O.C.G.A. § 51-13-1 render the right of the jury to assess damages meaningless when, as here, their determination and award is altered by a legislative determination of what constitutes a “proper” award. The cap so interferes with the determination of the jury that it renders the right of a jury trial wholly unavailable."
•  Violates the Separation of Powers Doctrine. The Georgia Constitution provides: “[t]he legislative, judicial and executive powers shall forever remain separate and distinct, and no person discharging the duties of one, shall, at the same time, exercise the functions of either of the others, except as herein provided.” Ga. Const., Art. I, Sec. II, Par. III.  Judge Bessen reviewed Supreme Court precedents going back to 1871 upholding the separation of powers doctrine. She found that a statute requiring reduction of jury's verdict to a predetermined damages cap equates to a legislative remittitur, and that "the power to grant a remittitur is vested solely in the judiciary, and must be exercised in conjunction with the power to grant a new trial" and "the noneconomic damages cap operates as a legislative remittitur."  Judge Bessen went on to find: "In effect, the statute completely disregards the jury’s deliberations and findings in determining the amount of damages which, in their sole discretion, fairly compensates the plaintiff. Instead, in all cases to which it applies, the cap substitutes a predetermined amount of noneconomic damages which the legislature has deemed appropriate. Moreover, it does so arbitrarily, without any consideration of the specific facts and circumstances of the case. Equally importantly, it does so without the option of a new trial for the injured plaintiff. As such, it unduly encroaches upon the judiciary’s constitutional right and prerogative to determine whether a jury’s assessment of damages is either too excessive or too inadequate within the meaning of the law."
• Violates Equal Protection. The Georgia Constitution provides: “No person shall be denied the equal protection of the laws.” Ga. Const. Art. I, Sec. I, Para. II.  Judge Bessen found that there was "no rational relationship between statute and the expressed government interest to “promote predictability and improvement in the provision of quality health care services and the resolution of health care liability claims … . it is a complete contradiction to state that the overall quality of healthcare would be improved by shielding negligent health care providers from liability. In fact, as recognized by other courts, a cap on noneconomic damages actually diminishes tort liability for health care providers and diminishes the deterrent effect of tort law. . . . While reduction of costs for its constituents is a legitimate legislative objective, there is absolutely no evidence that these objectives are achieved by imposing a financial burden on the most victimized of plaintiffs."

There's a lot more to Judge Bessen's lengthy dissection of O.C.G.A. § 51-13-1 but this covers the high points. 

Certainly there are two sides to every argument, and this is far from over. People of good will can and do disagree. In medical malpractice litigation there is inevitably conflict between deeply held and passionately advocated positions of victims of malpractice on one hand and conscientious and economically pressed health care providers on the other.  A ruling like this from a trial court judge is just a starting point.

Now the case will go to the Georgia Supreme Court. When an earlier order from Judge Marvin Arrington holding this statute unconstitutional was on the Supreme Court docket, the insurance company made an offer the plaintiff could not refuse.

The context of Supreme Court consideration of the issue is that Chief Justice Leah Sears recently announced her plan to leave the Supreme Court in June after a distinguished judicial career.  There has been a report she is being considered for the position of dean of the University of Maryland Law School, and her name comes up in speculation about who President Obama might appoint to the U. S. Supreme Court.

With Chief Justice Sears leaving the Supreme Court, Governor Perdue will get his second appointment to the Georgia Supreme Court.  His first appointment to the Court was Justice Harold Melton, who at the time of his elevation to the court was the 39-year-old African American executive counsel to the Governor. Justice Melton has been a delightful addition to the Court who appears to fit seamlessly into that collegial context.

By the time this case reaches the Supreme Court, Governor Perdue's next selection will be on the Supreme Court.  There has been much uninformed speculation about who the Governor might select for this appointment.

It would take a degree of political courage for the members of the Georgia Supreme Court to affirm Judge Bessen's order on the med mal cap.  All state Supreme Court justices in the country these days are acutely aware of the well-funded political campaigns that have been mounted against re-election of state appellate judges by groups with agendas generally perceived to be more favorable to business and insurance interests.  In a number of states, those campaigns have reshaped the state appellate courts.  In Georgia, we saw such a campaign in 2006 against Justice Carol Hunstein fall far short, as the challenger had underestimated the fight in the lady who is set to become our Chief Justice this summer.

All of this drama takes place on a rather intimate stage, as most of the players know each other very well.  I'm by no means a core insider, but I've enjoyed serving on committees or breaking bread with virtually all the players among the lawyers and judges involved over the past few years. They are all good, conscientious people whose jobs involve making a lot of hard choices.

There is much speculation -- much of it uninformed -- about how this will turn out. I expect it will be a close decision by Justices conscientiously trying to do the right thing as they honestly see it.

In the end, we always return to the maxim that the hard choices are never between good and bad, but between good and good, and between bad and bad.

 

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As an Atlanta trial lawyer, I have often seen instances of severe neglect in nursing homes. Last week I wrote on this blog about the ratings of Georgia's 358 nursing homes, 115 of which rated "much below average." 

A few days ago, a DeKalb County jury returned a $1.25 million verdict for the family of an amputee who died due to bedsores allegedly caused by substandard care at Kindred Healthcare's Tucker Nursing Center in 2002, as reported by Andy Peters in the Fulton County Daily Report.

The plaintiffs' claim was that the patient was left to lie in his own waste for hours because nursing home caregivers neglected to turn him, as required by law, leading to development of stage-four bedsores on his buttocks that penetrated to the bone.  As a result, he went into a catabolic state, a condition in which his tissues began breaking down, which led to malnutrition, additional bedsores, extreme inflammation of his entire body, and eventually death.

The defense claimed that all this was was expected due to the patient's underlying medical issues and history of prior skin integrity issues, other medical problems, and neglect by other caregivers.  The defense that the patient was old and sick anyway apparently did not work with the jury.

This reminds me of a nursing home malpractice case I handled several years ago in which an elderly woman at a nursing home developed a pressure sore on her ankle due to attendants leaving her in one position in her wheelchair far too long. This led to gangrene and amputation. When she returned to the nursing home after amputation of that leg, an attendant dropped her and broke the other leg, causing immense additional suffering. Whatever quality of life she had before was pretty much lost.

At this firm we have lawyers who regularly handle nursing home malpractice, abuse and neglect cases.

 

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We have lawyers in my firm who regularly handle nursing home malpractice and abuse cases all over Georgia. One of them called my attention to the new government web site that included ratings of nursing homes.

The 17 Georgia nursing homes rated "much above average" include: 

• A.G. Rhodes Home (Marietta)
• Brightmoor (Griffin)
• Carlyle Place (Macon)
• College Park Health Care Center
• Dade Health & Rehab (Trenton)
• Family Life Enrichment Center (High Shoals)
• Golden Living Center (Rome)
• Gwinnett Extended Care Center
• Heritage Healthcare (Toomsboro)
• James B. Craig Center (Milledgeville)
• Kentwood (Augusta)
• Presbyterian Village (Austell)
• Providence (Sparta)
• Regency Park (Dalton)
• Riverside (Thomaston)
• Rosehaven (Thomasville)
• Willowbrooke (Gainesville)

But out of 358 nursing homes in Georgia, 115 rate "much below average."  Too many to list here.

If a loved one has been a victim of abuse or neglect ina nursing home, call us.

 

 

 

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Georgia is one of the states that has adopted a hard cap ($350,000 here) on noneconomic damages in medical malpractice lawsuits.  Noneconomic damages include pain, suffering, loss of enjoyment of life, etc.

However, a catastrophic medical malpractice case with substantial economic loss may still result in a large recovery.  The death of a high income individual due to medical malpractice is still of substantial value in court, while the wrongful death of a homemaker or retiree may be treated in court as if the person's life had no value. That is because the cost of prosecuting is malpractice case is no high ($50,000 to $100,000 or more) that it is not economically feasible to pursue a case where the damages are capped at $350,000.

A recent Maryland case, which like Georgia has a cap on noneconomic damages, illustrates how a medical malpractice case may still hold substantial value even after tort reform.

In that case, a 47 year old man visited a dermatologist for a checkup in 1998. The doctor found a mole on his lower back and wrote a letter to the man's primary care physician recommending it be removed. But it was not removed.

It was noted again in September 2004 when the patient  returned to have boils on his upper back examined. He saw a new, part-time doctor in the same dermatology office, who suggested that two cysts and an atypical mole on the upper back be removed, but  that the mole on the lower back be monitored, although it had doubled in size since 1998. The second doctor in the dermatology office was unaware of the size increase because the first dermatologist had purged his old records, as is allowed under state law for records more than five years old.

The patient returned to the dermatology office in August  2006 when his wife noticed the mole on his lower back had changed color. It was removed, but shortly afterward it was found the cancer had traveled to dozens of lymph nodes in his 's groin and lower abdomen. The cancer traveled to Semsker's brain and he died in October 2007.

At  trial, the lawyer for the patient's family called as an expert witness a  melanoma researcher, who testified the patient would have had a 95 percent chance of a complete cure if the mole had been removed in 2004, but  the delay allowed the cancer to travel into the bloodstream and become incurable.

The first dermatologist's insurance will pay the lawsuit, allowing his practice to continue.

The jury returned a wrongful death verdict for $5.8 million, but it was reduced to $3.6 million due to a Maryland cap on non-economic damages in medical malpractice cases similar to the current Georgia malpractice law.

 

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In my law practice in Atlanta, Georgia, we get inquiries about hospital, nursing home or home health care patients who die or suffer serious injuries due to being entrapped in a gap between the mattress and guard rail in a hospital bed.

If you have ever spent night after night in a hospital room keeping vigil with a heavily sedated family member, as I have too often and too recently, you can imagine how mismanagement of the hospital bed could pose that danger.

The Hippocratic Oath from days of ancient Greece admonishes physicians, "first do no harm." That should apply to the hospital or nursing home as well as the doctor.

The risk of entrapment and even death due to the positioning of hospital bed rails has been well known for a long time. Data on this has been publicly available since 1985.  The Food and Drug Administration first issued a warning to home health agencies, nursing homes and others in 1995.

Generally the defendant in such a case would not be the individual physician or medical practice group. Rather, it would be the equipment supplier, hospital, nursing home or home health agency that supplied and managed use of the hospital bed,  or the manufacturer of the bed.

We are always available to review potential cases resulting from such incidents.

For more information about the foreseeability of such incidents to professionals in the nursing and medical management fields, see:

• FDA Issues Guidance on Hospital Bed Design to Reduce Patient Entrapment (2006)
• FDA Proposes Hospital Bed Entrapment Rules (2004)
• FDA Safety Alert: Entrapment Hazards with Hospital Bed Side Rails (1995)
• Reducing risk of entrapment in hospital beds (2006)
• Bed-rail entrapments still a serious problem (McKnight's, 2008)(includes illustrations of entrapment patterns)
• Another hospital bed entrapment concern: 'power down' versus 'gravity down' (McKnight's, 2008)
• DEVICE SAFETY: Waking up to hospital bed entrapment risks  (NursingCenter.com, 2008)
• Warnings Do Little To Prevent Bed Rail Entrapment (Chicago Nursing Home Abuse Blog, 2008)

 

 

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As an Atlanta lawyer handling mostly catastrophic truck wreck cases, I tend to view doctors more as friends than adversaries.  However, the opinions of some notwithstanding, they are as human as the rest of us.

The X-Ray Technicians blog recently posted a list of medical procedures with very high profit margins, suggesting that at least some of them may be overutilized.  As consumers of medical services, we should be alert to wastes of money, whether our own or the insurance company's.  Some of the items on the list have the smell of frivolity, e.g, medi-spa treatments, chemical skin peels and botox injections.  But if I ever need it, I don't want any skimping on spine surgery (been there, done that), heart surgery, diagnostic imaging and chemo. And I can tell you that the cardiac scan sure gave me a lot of peace of mind.

1. Medi-spa treatments: Spa treatments are spa treatments, whether you’re in a medical setting or not. The convenience factor and implied credibility of a medi-spa, however, means you’ll pay a lot more.
2. Mammogram: This high cost screening procedure has been found to be ineffective and can even spread malignant cells. The Cancer Prevention Coalition recommends clinical and self-exams as an effective low cost alternative.
3. Physician dispensed prescriptions: Doctors can make thousands of dollars a year dispensing medication out of their offices, and maintenance medications are especially profitable.
4. Chemical skin peels: In 2003, chemical peels created an annual gross of more than $578 million in the United States. This highly elective surgery commands higher pricing than low demand, complex procedures. Chemical peels are almost never covered by insurance.
5. Laser surgery: Laser-assisted surgery is a cash cow for both doctors and laser manufacturers.
6. Cardiac catheterization: Many medical centers find that they have a high return on investment of an arterial closure device that facilitates cardiac catherization.
7. Holistic medicine: Procedures such as acupuncture massage, and other alternative therapies are very lucrative, with a high margin of revenue when compared with the physician’s time spent.
8. Gastric bypass: Gastric bypass centers are popping up all over the country because obesity surgery is a high-margin business. Even better, it’s often fully covered by insurance.
9. Glasses and contacts: The glasses and contacts that you wear every day are a high-margin, repetitive product that makes a lot of money.
10. Radiopharmaceuticals: These therapeutic and diagnostic molecular imaging radioactive pharmaceuticals present a profitable venture for medical practicioners.
11. Heart scans: Cardiologists make millions by offering scans to baby boomers concerned with early screening.
12. Spine surgery: Sine surgery isn’t generally regarded as a high-volume, high-profit procedure, but it is moving in that direction. The Medical District Surgery Center in Last Vegas reports that doctors who perform spinal surgery are reimbursed from $3,000 to $35,000 per case.
13. Heart surgery: Heart surgery is an incredibly profitable procedure. So profitable, in fact, that a hospital in California carried out hundreds of heart operations instead of simpler, cheaper alternatives.
14. Hysterectomy: Hysterectomy is a high paid surgery, and it is a relatively fast procedure. Many women undergo hysterectomies to take care of fibroids and other reproductive troubles, when there are alternative procedures that are not as drastic and profitable.
15. Osteoporosis screening: This diagnostic procedure is a profit center for doctors, with an aging population that needs to be screened and insurance companies that are willing to reimburse generously.
16. Fertility treatments: Many doctors who offer fertility treatments enjoy high profits from their work, some of them even earning a commission for finding egg donors.
17. Circumcision: Circumcision create a billion-dollar a year industry. This unnecessary surgery is often recommended because it will prevent a variety of ills, however they have been largely discredited.
18. Chemotherapy drugs: Oncologists almost always sell chemotherapy drugs, which is a highly profitable source of revenue. If you feel that you’re not getting the right treatment for your cancer or you’re being treated with unnecessary chemotherapy, get a second opinion.
19. 24-hour access: Doctors can charge $3,000 or more every year by offering unlimited 24-hour access to themselves. So if you need help in the middle of the night, you’re going to pay for it.
20. Lab work: Some doctors can earn as much as $2.3 million every year just by running a lab in the office. This is especially profitable for practices that have patients that require bloodwork on a constant basis, like diabetics.
21. Outpatient procedures: Just about any surgery or procedure that’s performed on an outpatient basis is incredibly profitable because you can be discharged quickly.
22. Lasik: Lasik is a popular and profitable surgery, although it’s almost never paid for by insurance. This expensive procedure is responsible for a significant jump in the compensation of most opthamologists.
23. Diagnostic imaging: Procedures like CT, ultrasounds, and MRI will boost your doctor’s bottom line. An especially profitable imaging procedure is X-ray, because it’s cheaper to execute.
24. Botox injections: These aesthetic injections are profitable because they’re in high demand, and also because you’ll need to make a number of repeat visits for follow-up injections every few months.
25. Heart monitoring: Doctors can order devices like the Holter monitor without a huge investment, and reap large financial rewards for offering the service.

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As a personal injury attorney in Atlanta, I was initially one of those who feared the worst when the Georgia legislature passed it omnibus tort reform legislation, Senate Bill 3, in 2005.   It was as if the political power structure had done everything it possibly could to kill victims of negligence -- and the lawyers who represent them.  Some thought it was the death knell for personal injury tort litgation in our state.

However, as soon as the bill passed, a few of us began to gather for a series of weekly breakfast brainstroming sessions focused on how to survive and prosper in the new environment. Those sessions helped transform the law practices of several of the participants. Other lawyers around the state began to go through the same sort of process of evaluation and change.

Three years later, we have seen an increase in the frequency and geographical distribution of impressive jury verdicts in injury and death cases. Even counties that had been viewed as black holes for plaintiffs are producing seven and eight figure jury verdicts.

The most recent was a $5 million verdict this week in a hospital malpractice wrongful death case in Gwinnett County. That case involved the death of a new mother due to a fall, as the hospital personnel had not followed fall precautions which were indicated.

Until very recently many of us had simply declined to accept cases in Gwinnett because the juries there were so notoriously hostile to personal injury and wrongful death plaintiffs. I haven't heard how the $350,000 cap on noneconomic damages in medical malpractice cases may affect that, if at all. It would not be surprising for an economist to reach a $5 million economic valuation on the life of a promising young adult.

A couple of weeks ago in Fulton County, which used to be a big-verdict venue but in recent years has become much more conservative, there was a $54 million verdict, which was reduced to a mere $10.25 million due to the statutory cap on punitive damages which was enacted in 1987.

Last year we had a $2.3 million verdict in a trucking case in conservative, rural Gordon County..  There have even been million dollar verdicts in some of the small, rural, deeply conservative counties.

The "loser pays" provision of S.B. 3 -- an "offer of setlement" feature in OCGA 9-11-68 which can require a party to pay the other side's attorney fees and litigation expenses if it fails to do 25% better at trial than in trial than in a rejected settlement offer -- was designed to intimidate and oppress plaintiffs.  However, it has primarily hurt the defense side. In one medical malpratice case, the plaintiff got some $4 million in fees and expenses added to the compensatory damage award under this provision.

There are quite a few other examples that I have not taken the time to compileon a Saturday morning of a holiday weekend.

Why have we seen an increase in substantial verdicts in Georgia after the tort reformers got everything they asked for in the legislature?  Certainly a few minor details of S.B. 3 have been held unconstitutional, but none of those points are substantially involved in these cases.

Another hypothesis is that tort reform has forced plaintiffs' lawyers to work harder and smarter in case preparation. With so many obstacles thrown in our path, we have to work hard in investigation, in selection and preparation of experts, and in all aspects of trial strategy and preparation.

When that enhanced preparation encounters the most democratic of all institutions in American society -- a jury of ordinary people from all walks of life with no political fears or aspirations related to their service on one case -- serious cases can get serious verdicts.

Three years ago, one might have predicted that by now we would be out of business and our clients would be out of luck.  Today, however, it's a great time to be a lawyer representing good people with legitimate claims of serious injury or wrongful death of a loved one.


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As a trial lawyer representing injury victims in trucking accident cases in Georgia, I'm always on the lookout for medications affecting driver alertness.  Another suspect medication has been added to the list.

The Federal Motor Carrier Safety Administration issued a warning Thursday on the anti-smoking drug Chantix, advising medical examiners "to not qualify anyone currently using this medication for commercial motor vehicle licenses." Chantix, made by Pfizer, Inc., was attacked in a study by a non-profit group on Wednesday for possible links to seizures, dizziness, heart irregularity, diabetes and more than 100 accidents. The U.S. Department of Transportation warned all of its agencies almost immediately after seeing the report which reported that Chantix was linked to 988 serious events in the last quarter of 2007.

For more information, see this article by Alicia Mundy and Avery Johnson of the Wall Street Journal.


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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.

 

 

 

 

 

 

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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.

Due to the power of the lobbying forces arrayed against it, however, I will be utterly astonished if it passes.



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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

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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.

 

 

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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.



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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.
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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."
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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. Continue Reading Questions & comments 0

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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.
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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.





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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.

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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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:

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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.

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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:

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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.

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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.

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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.

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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.

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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.

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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.

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