Marietta Injury Lawyer Blog

With the Supreme Court of Georgia's recent monumental decision on medical malpractice damages caps, the tort reform debate is back in the news. As a Marietta Medical Malpractice Lawyer, when I saw that Joe Kirby (Editor of the Editorial Page of the Marietta Daily Journal) had written an article on medical malpractice damages caps, I was curious to see what his take on the issue would be. The MDJ's Editoral Page has a long standing reputation as a respected conservative voice for Metro Atlanta.

Mr. Kirby's article on med mal tort reform is a refreshing look at the issue without a political bias. If you are interested in learning more about the practical effect of tort reform I recommend you read this MDJ article.

In 2005, under extreme pressure from the insurance industry, the Georgia Legislature passed sweeping tort reform measures (known as SB3) drastically changing Georgia law. At the heart of SB3 is OCGA § 51-13-1, which limits noneconomic damages in medical malpractice actions. Under this law no matter what value a jury places on a human life, the loss of a limb, the ability to see, or other catastrophic injury the award must be reduced to an arbitrary limit imposed by the Legislature. Today, the Supreme Court of Georgia in an unanimous 7-0 decision, Atlanta Oculoplastic Surgery, P.C. v. Nestlehutt et al., held noneconomic caps on damages unconstitutional.

The Supreme Court ruled "OCGA § 51-13-1 clearly nullifies the jury's finding of fact regarding damages and thereby undermines the jury's basic function...Flat caps on noneconomic compensatory damages...violate this State's constitutional guarantee that 'the right to trial by jury shall remain inviolate.'"

As one who believes in protection of our sacred constitutional rights and also a strong believer in victims' rights, I could not be more pleased with the Supreme Court's decision. Today is a great day for Georgia and for Betty Nestlehutt. Click here to watch Betty Nestlehutt's story.

Mrs. Nestlehutt's lawyer, Adam Malone, commented on the Court's decision. "The bedrock of our democracy depends upon our ability to self govern at the ballot box and in the jury box," Malone said. "Any attempt by the government to invade either is an assault on what separates America from the rest of the world."

In the arena of medical malpractice, the law in Georgia has always favored hospitals and doctors. While the number of deaths and serious injuries from medical errors are at an all time high recovery for injured patients (settlements and verdicts) are the lowest they have been in nearly 20 years. Georgia medical malpractice lawyers continue to face an uphill battle helping malpractice victims recover. So even though times are still tough for malpractice victims, at least the constitutional promise of a trial by jury remains.

Since 1863, Georgia law has required that those practicing medicine for compensation must bring to the exercise of their profession a reasonable degree of care and skill, and Georgia law has provided that any injury resulting from a want of such care and skill shall be a tort for which recovery may be had. In 2005, all that changed, and ER physicians in our State were no longer required to practice with care and skill. This new law, codified at OCGA § 51-1-29.5 (c), was part of the tort reform package proposed by the insurance industry and passed by the Georgia Legislature in 2005. Those injured or killed by ER malpractice can no longer recover unless they can prove a much higher burden of gross negligence. This week in a 4-3 decision, Gliemmo et al. v. Cousineau et al., the Supreme Court of Georgia upheld the ER gross negligence statute as constitutional.

The case began in 2007, when Carol Gliemmo presented to St. Francis Hospital with serious pain behind her eyes, a sudden snapping in her head, and elevated blood pressure. Mark Cousineau, MD of Emergency Medical Specialists of Columbus, P.C. wrote her a prescription for Valium and sent her home. Two days later her primary care physician ordered a CT scan, which revealed a brain hemorrhage. As a result of the brain hemorrhage going untreated Carol Gliemmo was paralyzed.

So, even though expert physicians can agree that Dr. Cousineau breached the standard of care required of emergency physicians and caused this woman's paralysis she cannot recover under Georgia law. It's still difficult to believe this is the state of the law in Georgia. I'm certain Georgia medical malpractice lawyers will continue to fight for injured victims, but times are grim in Georgia. Of course Atticus Finch would say courage is knowing you're licked before you begin but you begin anyway and you see it through no matter what. You rarely win, but sometimes you do.

In 2005, by the narrowest of margins, the Georgia Legislature passed sweeping changes to Georgia's tort laws, known as SB3. Included in those changes was the new "Offer of Settlement" statute, codified at OCGA § 9-11-68. The Offer of Settlement statute has created a new mechanism for punishing a party to litigation with attorney's fees. Georgia already has two statutes (OCGA §§ 9-15-14 and 13-6-11) that subject parties to statutory penalties, including attorney's fees, for bringing frivolous suits or unreasonably litigating matters. The Offer of Settlement statute is different in it applies to all cases even meritorious suits that prevail at trial. This statute sets up situations where injured victims may win a jury verdict but end up with a net loss because the insurance companies' attorney's fees exceed the verdict. This week, the Supreme Court of Georgia in a 5-2 decision upheld the Offer of Settlement statute overruling the trial court's finding that the statute violated the Georgia Consitution's right to access the courts.

In her dissent, the honorable Justice Hunstein artfully explained why this statute does in fact violate our constitutional access to the courts as follows: "OCGA § 9-11-68(b)(1) penalizes plaintiffs with meritorious causes of action for an impossiblity, namely, their failure to see into the future so as to calculate the precise amount a factfinder may award them for the damages they reasonably believed they sustained at the hands of the defendants...No party intending to file a cause of action in tort can foresee whether she will recover 'enough' money to avoid the effect of OCGA § 9-11-68(b)(1)."

The practical effect of this statute is that it will make it extremely difficult for middle class Georgia citizens to pursue meritorious cases. As discussed above, if an injured person fails to recover "enough" money from the jury, the insurance company can take a judgment against the injured person for the attorney's fees they paid defending the case. Those without significant assets will not be deterred from pursing meritorious cases, because there is no way to collect a judgment against someone that has nothing (also known as "judgment proof"). The wealthy will still seek justice and their day in court knowing they can afford the unlikely result of a lower than expected jury verdict in their favor. The middle class injured victim is the only one truly stung by this new law. Many will still seek justice, but there are those that will forgo pursing recovery for their broken bones and medical expenses because the fear of having to pay for the insurance companies' lawyer. This new law is just one of many challenges an experienced Georgia personal injury lawyer must negotiate in the mine field that is civil litigation.

The above video illustrates why we need government watchdogs, consumer advocates and Georgia trial lawyers fighting for the constitutional right to a jury trial. If you watch the video you will understand why the American System of Civil Justice should be protected from the insurance companies. We continue to pray for a favorable ruling from the Georgia Supreme Court to return Georgia to a place where judges and juries decide what is appropriate compensation for medical malpractice victims.

Proponents of civil justice are celebrating and insurance companies are fuming in the wake of yesterday's decision by the Illinois Supreme Court. Illinois' highest court ruled capping damages for victims of medical malpractice violated the State Constitution's separation of powers clause by imposing decisions reserved for judges and juries. That is a huge win for the citizens of Illinois.

I've defended a huge number of doctors and hospitals in medical malpractice lawsuits, I have doctors in my family, and I have a really high opinion of the medical profession. As a Georgia medical malpractice lawyer, I recognize healthcare is a problem in our country. However, caps on medical malpractice damages are not the answer. Unless the question is how do we further victimize those that have been catastrophically injured by medical negligence.

For those that don't know, medical malpractice caps mean this: No matter what a doctor or hospital does to you. No matter how egregious the malpractice. No matter if the consequence is death, dismemberment, or disfigurement. You CANNOT recover what the judge and jury think your case is worth if it exceeds the arbitrary cap. In Georgia the cap is $350,000. If you are a housewife, retired, or unemployed and killed by a doctor's negligence the judge and jury cannot decide what your life is worth, $350,000 is the max. If a checked-out doctor cuts a baby's penis off during circumcision, refuses to acknowledge her mistake, and the baby is forced to live a life disfigured, the jury's verdict will be reduced to the arbitrary cap. Caps on damages were created by insurance companies to erode the civil justice system of trial by jury. For all its flaws, the American system of justice is still the best system in the world.

Thankfully, Illinois was protected from these caps by the State's Constitution and their high court's willingness to enforce it. The Supreme Court of Georgia is expected to rule soon on our medical malpractice caps. I, like many others, hope and pray Georgia will soon also be free from the injustice of caps.

Insurance companies are waging war on the American Civil Justice System. They consider the Right to Trial by Jury and the Rule of Law unnecessary speed bumps reducing insurance company profits. Insurance companies began their organized attack on the constitutional right to a trial by jury since before this Georgia Injury Lawyer started practicing law, over ten years ago. In recent years, Insurance companies in Georgia have been specifically targeting victims of medical malpractice.

Luckily, many still believe the American Civil Justice System is still the best system in the world and have taken up the fight to defend the Right to Trial by Jury. Recently, a leading civil justice blog addressed the question how many hoops should medical malpractice victims have to jump through to obtain justice? It is an excellent read.

For nearly two decades, the American Cancer Society has been recommending annual mammograms beginning at 40. However, the U.S. Preventive Services Task Force, a government panel of doctors and scientists, recently issued a controversal report that mammograms are not recommended until age 50 and then only every other year. In response to the government report, the Cancer Society's chief medical officer, Dr. Otis Brawley stated "This is one screening test I recommend unequivocally, and would recommend to any woman 40 and over,"

Dr. Brawley went on to offer this sharp criticism of the report: "The task force advice is based on its conclusion that screening 1,300 women in their 50s to save one life is worth it, but that screening 1,900 women in their 40s to save a life is not, Brawley wrote. That stance "is essentially telling women that mammography at age 40 to 49 saves lives, just not enough of them," he added.

As a Georgia Injury Lawyer that deals with insurance companies on a daily basis, I'm concerned about the insurance implications this task force report will have on healthcare. Although research shows annual mammograms beginning at age 40 save lives, I fear health insurance companies will use this recent report to justify refusing payment for mammograms before the age of 50 and then only authorize mammograms every other year. Like prexisting conditions and other insurance created concepts, this will give insurance companies additional opportunities to accept premiums without providing appropriate benefits.

Continue reading "The American Cancer Society Sharply Critical of New Mammogram Standards; "Annual Mammograms From Age 40 on Save Lives"" »

With all the reports recently of preventable medical errors, today CNN printed an informative article "How to avoid falling victim to a hospital mistake." The average person would be shocked by some of the stories I hear on a regular basis as a Georgia Medical Malpractice Lawyer. The Joint Commission, which provides accreditation for hospitals, reports that wrong-site, wrong-side and wrong-patient procedures occur more than 40 times each week in the United States.

The above CNN article arms patients with simple practical knowlege that can help prevent these types of errors. One example is to repeat your name, date of birth, and the procedure you are having to each and every nurse, tech and doctor involved in your care. I would recommend reading this article for anyone undergoing any hospital testing or surgery in the near future.

Insurance companies are spending millions of dollars each year lobbying State and Federal government to limit medical malpractice victim's access to the courthouse with various tort reform measures. Insurance companies justify their endless attack on the right to trial by jury with the argument that the majority of medical malpractice claims are frivolous. However, the recent studies published by the non-partisan National Institute of Medicine indicate 44,000 to 98,000 patients die each year as a result of preventable medical errors and as many as 1,000,000 are seriously injured.

Nearly every day as a Marietta Medical Malpractice Lawyer, I hear another heartbreaking story of death or serious injury due to preventable medical errors. A recent report of the AAJ highlights several true stories of medical error victims including that of Blake Fought. Blake was only 19 years old when he was set to be discharged from the hospital following an illness that required a central line IV. His nurse had never been trained to remove the IV and did not follow proper procedures, causing air bubbles to invade his heart and brain. As a result of this preventable error, Blake died in front of the nurses and his parents.

Continue reading "Georgia Victims of Medical Malpractice Need a Fair Chance at Justice; 98,000 Americans Die From Preventable Medical Errors Each Year." »

Georgia victims of medical malpractice, and the insurance companies that provide insurance to doctors and hospitals, are anxiously awaiting the Georgia Supreme Court's ruling on whether damages caps are unconstitutional. Marietta Daily Journal columnist Joe Kirby recently addressed the issue in his article, No Miracle Cure.

It has become a regular practice in Georgia for nursing homes, assisted living, rehabilitation centers, and long-term care facilities to include forced arbitration contracts in the required admission documents. These mandatory arbitration contracts are forcing Georgia's elderly citizens to waive their constitutional right to a trial if they become victims of medical malpractice or abuse at the hands of the nursing home. First, these arbitration contracts are typically hidden in a stack of admission documents. Additionally, it is impossible for patients and families to contemplate the magnitude of what they are signing at such a stressful time. Nursing home admissions are often made under emergency situations or when a potential resident or family is faced with inadequate resources to care for a loved one; and when they sign this document they are forever waiving the right to seek civil justice in a court of law with no regard to the severity of the neglect, abuse, or malpractice.

In the nursing home medical malpractice cases we have handled involving forced arbitration agreements, clients tell us they had no idea they had signed such an agreement and certainly did not realized they were waiving the right to pursue a claim for neglect, abuse, or malpractice. The types of cases most affected by this wide spread nursing home practice are typically catastrophic - such as amputations caused by undiagnosed and untreated medical conditions, painful pressure sores that untreated lead to infection, amputation, and death, serious injury and death from malnutrition or dehydration, and physical and sexual abuse. Although Georgia law (See O.C.G.A. § 9-9-62) is supposed to render these offensive arbitration contracts unenforceable, nursing homes have gotten around the law arguing the doctrine of Federal Preemption. Although, thus far, our medical malpractice lawyers have been successful in defeating the mandatory arbitration contracts we have encountered in our cases, these agreements are being enforced by Georgia Courts in some circumstances.

Continue reading "Many Georgia Wrongful Death and Personal Injury Plaintiffs May Not Get Their Day in Court Due to Forced Arbitration." »