Georgia’s Courts Uphold What We Knew All Along: Citizens’ Access to the Justice System is a Constitutional Right

Allison Wall

Georgia’s Courts Uphold What We Knew All Along: Citizens’ Access to the Justice System is a Constitutional Right

Last year, the Georgia General Assembly delivered a present to Big Insurance, the hospital and medical lobbies, and corporate giants Georgia Pacific, Home Depot, Georgia Power and Coca-Cola. It was called Senate Bill 3, and it severely changed the state’s justice system.

Senate Bill 3 limits what a jury can compensate any victim for physical loss and disability to $350,000 – even if the negligence kills a loved one. This one-size-fits-all approach brutally affects retirees, veterans, stay-at-home parents and anyone else who does not work or works for modest pay. [Correction: This sentence should read “any victim injured as the result of medical malpractice” instead of “any victim.”]

The controversial bill also takes away the rights of patients injured or killed in any of Georgia’s emergency rooms because of clear negligence. The ER immunity provision of the law requires patients to prove “gross negligence,” which means proving that their medical provider willfully and knowingly mistreated them. This is virtually impossible to prove in an emergency setting, after the fact.

What’s more, the law contains several smaller provisions that have combined to make it almost impossible for victims of medical malpractice to find justice in a courtroom. But since the law was signed in 2005, several of those smaller provisions have been struck down as a violation of Georgia citizens’ constitutional rights, or are awaiting a ruling from a higher court.

For example, lawmakers who supported Senate Bill 3 claimed that the “venue” changes would keep attorneys from "shopping" their cases to get sympathetic jury pools. But the effect was to give insurance companies and their defense attorneys the right to demand the most lenient, friendliest courtroom.

In February, the Georgia Supreme Court ruled that it is unconstitutional to allow defendants in medical malpractice lawsuits to dictate the county where their case is heard. Chief Justice Leah Ward Sears in her opinion wrote that the state Constitution grants only trial judges, not defendants, the authority to transfer cases from one county to another. For that reason, the venue provision is unconstitutional, she said.

Another provision, “offer of settlement,” was first rejected in 2005 in a Gwinnett County court. Before going to trial, the plaintiffs had received an offer of $6,300 from the defendant to settle the lawsuit. The plaintiffs decided to exercise their right to a jury trial and turned down the settlement offer. The jury awarded the plaintiffs only $2,860. To add insult to injury, the plaintiff was instructed to pay the defendant’s legal fees.

Why? The “offer of settlement” provision in Senate Bill 3 says that if a plaintiff turns down a settlement offer, and fails to receive a court judgment that is at least 25 percent higher than the settlement offer, then the plaintiff is on the hook to pay the defendants’ legal costs. In other words, victims have to do more than just win – they have to win big.

Gwinnett Superior Court Judge Michael Clark ruled against the “offer of settlement provision,” saying, "To penalize the winning parties simply for not winning enough, as the statute apparently permits, would effectively chill ‘the right to prosecute or defend’ a cause of action in the courts of this state."

Again this summer, the Georgia Court of Appeals struck down a provision in Senate Bill 3 requiring medical malpractice plaintiffs to give up the privacy of their medical records when they file their claims. [Correction: This sentence should read "when they file their lawsuits" instead of "when they file their claims."]

The provision required the plaintiff to file a medical authorization form contemporaneously with the filing of a medical malpractice complaint. Failure to provide the authorization would subject the complaint to dismissal.

The Court of Appeals' ruling said the confidentiality waiver conflicts with the federal Health Insurance Portability and Accountability Act (HIPAA), which guarantees the confidentiality of patient information. The ruling reaffirms that access to patients’ information must be balanced with privacy protections.

Finally, the provision that restricts the use of expert witnesses has also come under fire. It says an expert in medical malpractice lawsuit must practice the same specialty that he or she is testifying about?

Defendants have attempted to use that part of the law to say that an orthopedic surgeon cannot criticize a neurosurgeon, even though they both perform many of the same surgeries. Georgia courts have said that as long as the two doctors both have the same specialty – both perform the same surgeries – then one can testify about another.

The “expert witness provision” was found unconstitutional, to the extent it was to be applied retroactively, by Judge Clayton in Cobb County last year; but she just reversed herself last week in a new ruling (Mason v. Home Depot). A final ruling on the matter is expected soon.

While the courts are cutting out the unconstitutional parts of SB 3, some groups are working hard to protect the law. In a recent article on election tampering, the Atlanta Journal-Constitution reported that, “The Safety and Prosperity Coalition, according to its Web site, was formed largely to guard Georgia's 2005 tort reform, limiting liability for businesses when they are sued, from erosion in the courts. The group, which could channel unlimited funds into television ads and other efforts to influence voters … had raised a reported $318,500 by the end of September. Last week, it began airing its first ad … on network TV.”

If you thought the fight over tort reform in Georgia ended with the passage of Senate Bill 3, think again. In many ways, it has just begun.

Link to AJC story: http://www.ajc.com/metro/content/metro/stories/2006/10/18/1019metethics.html

Posted at 9:48 AM, Oct 20, 2006 in Permalink | Comments (3) | TrackBack (0)

Comments

I think we should send a message , vote against the incumbents, let them know we the people pay their salry and they were elected to to serve the people in our best interest , not the fat cats that pay them under the table.

The courts are biased in favor of lawyer rent seeking. There is no recourse for the majority of lawsuits which are frivolous, and legalized land piracy.

Biased lawyers lawlessly refuse to allow victims of lawyer land piracy recourse in filing of legal malpractice claims by adverse third parties. When torts law fails, self-help is fully justified. The names of all land pirates and their biased, lawyer dependent judges should be in a database. Productive sectors should then refuse them products and services.

In April 2005, my husband died in an emergency room.

I’ll start at the beginning. He had discovered a rash on his arms and legs, and his digits had begun to swell up. We arrived at the emergency room at 5:00 PM and he was seen very quickly by the screener. When his blood pressure was taken, it was extremely high. The interviewer said he wanted to move us to another waiting room, the one directly connected to the emergency room. We sat and waited. After about 2 hours, I talked to the girl behind the desk in the emergency room. I asked when someone would be seeing us. I explained that my husband had very high blood pressure and we had been waiting for 2 hours. She said she would send someone right in. We waited about 15 minutes more, and the same kid who had interviewed us when we arrived came in and took my husband’s blood pressure. Again, it was extremely high. The kid said he would let them know.

We waited another 2 and 1/2 hours and I approached he girl at the desk again. I asked what the problem was and when we would see a doctor,. She said that she had no beds available and we would have to wait until one was available. I told her that he didn’t need a bed, if they had to lay him on the floor, I wanted someone to check on him immediately. She assured me that it would happen. We waited another 15 minutes and finally she came and took us to a room in the emergency room. At that time, we appeared to be the only people seeing a doctor – all the other rooms were empty.

The woman who examined my husband was an intern; or perhaps a nurse practioner. When she looked at the record, she said there must be some mistake. We couldn’t have been waiting for 5 hours. It was now 9 pm.

She first took his blood pressure and it was now extremely low. She said he appeared to be fine now. She ran an EKG and it seemed fine. She then decided to take an x-ray and moved his gurney across the room to the x-ray equipment. I went back to the waiting room. Two minutes later, a woman came in and asked to speak with me. It seems that when they were trying to set him up for the x-ray, my husband’s body shut down – complete system shutdown!. They had to refib him 4 times to bring him back. They weren’t sure that he would survive the night.

We waited for an on-call doctor to get to the hospital. When I talked with him, and when he asked about how this had come about, I told him the story. I said that I figured he was fine because his blood pressure had dropped. The doctor said that should have been the first clue that there was a problem. People’s blood pressure didn’t just go up and down so drastically. Someone should have acted quickly. He said my husband’s lungs were full and he had an infection running through his body.

On the one hand, I consider myself lucky that we were in the emergency room when he collapsed. On the other hand, someone should have checked on him immediately and started treatment for the infection. But no one did anything.

As it turns out, my husband had sustained a tick bite and the infection was
Rocky Mountain Spotted fever.

Ye, my husband lived. Yes, he was in a coma for 8 days. And, yes we did find out what his problem was. He was moved to St. Joseph’s in Atlanta the next day. Thank God for St. Joe’s.

My husband and I have discussed the incident. He actually doesn’t remember any of it.
But I guess that’s okay too.

If an Emergency Room won’t provide emergency services, what good are they?

When my husband was out of the hospital and doing well, I sat down and wrote a letter to the hospital administrator. I figured they would want to change their practices or something. I never received a reply. Not even a form letter saying thank you for your comments. I doubt that anyone did anything about it. If we ever need help again, Northside Hospital will be the last place I go.