Medical Malpractice

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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:

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 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.

Senate Bill 3 includes a provision that health care institutions are not liable for negligence of independent contractors when a sign to that effect is posted in the lobby, etc. On the surface this appears to be merely a codification of existing Georgia law. It has long been the law that hospitals are not responsible for the negligence of non-employee doctors practicing in the hospital. However, nurses, technicians, etc., generally have been hospital employees, for whose negligence the hospital could be held liable. It remains to be seen whether hospitals and nursing homes will begin to lease all nurses and other support personnel through other companies, and thus escape virtually all liability.
Lawyers who are still brave enough to take on the risk of handling malpractice claims after Senate Bill 3 may need to explore the possibility that some unseen employee leasing company may be an appropriate defendant.

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.