Though common in litigation, confidential settlements can be controversial.

While confidentiality agreements had help expedite settlement, there are concerns that secret settlements can work against public safety by covering up health and safety hazards. As with much in life, the hardest choices are not between good and bad, but between good and good, and between bad and bad.

Under a confidential settlement agreement or order, some or all terms of a settlement are kept secret. Defense lawyers routinely include a confidentiality clause in a proposed release when there is a large settlement. Sometimes it is a throwaway item in a

In the national debate over health care there has been much discussion of the fact that many people go to hospital emergency departments for medical care that is not necessarily due to a true emergency involving a serious personal injury  or immediately life threatening illness.

There are many reasons for that, some good and some not. Even if you have a regular physician treating a chronic illness, getting an appointment can take a long time. If you call after hours or on weekends you may be told to go to the ER for anything that requires immediate attention.

The Georgia

Atlanta area news coverage this spring has been dominated by the story of a young woman graduate student who suffered a gash on her leg in an accident on a homemade zip line during a rafting trip on the Tallapoosa River. She was taken to the emergency department of the local hospital in a suburban county where, according to news reports, the gash on her leg was stapled shut. I have not seen media reports as to whether or not she was given antibiotics at that time.

Afterward she developed the flesh-eating disease necrotizing fasciitis, resulting in amputation of a

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.

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.

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.

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.