In 2005 the Georgia legislature passed a sweeping tort reform bill (S.B. 3) which enacted a number of measures intended to reduce the incidence of meritless litigation and to decrease the cost of litigation. The 2005 bill included caps on non-economic damages, increased standards of proof for certain medical malpractice claims, and a loser-pays offer of judgment rule.
Predictably, the trial bar cried foul and several test cases have wound their way through the system and are likely to be decided by the Georgia Supreme Court in the next few weeks or months.
In the interim, however, the Eleventh Circuit has taken the opportunity to wade into the scuffle with an opinion of its own.
In Deen v. Egleston (11th Cir. Feb. 26, 2010) the Eleventh Circuit reversed a ruling by the federal trial court that had struck down an earlier tort reform statute that had limited the time period for medical malpractice plaintiffs to file to only two years. (Opinion; Background from Fulton County Daily Report (subscription required)).
The plaintiff (Deen) had sought treatment from a dentist for swollen gums resulting from periodontal disease. The dentist performed a "debridement" procedure in which calculus was removed from underneath the plaintiffs' gums. A debridement procedure causes a large quantity of bacteria to be released into the bloodstream and can be dangerous for patients prone to infections and other complications. The plaintiff claimed that various elements of his medical history should have alerted the dentist to these factors or that the dentist should have taken other steps to prevent the infection. The plaintiff claimed that the debridement caused an infection in his brain as a result of which he suffered a stroke and long-term mental and physical incapacitation.
The plaintiff filed suit nearly three years after the procedure and his injuries. The Georgia statute of limitations, O.C.G.A. 9-3-71, however, requires medical malpractice plaintiffs to file within two years from the date of injury. U.S. District Judge Anthony A. Alaimo, just months prior to his death, ruled that the two year limitation was unconstitutional because it was not rationally related to the state's interest in reducing healthcare costs. He wrote that the statue "appears to have been based on either [a] misunderstanding of the problem of healthcare expenses, or an outright boondoggle."
Roughly one week ago, the Eleventh Circuit reversed, suggesting that the late Judge Alaimo had "waded[d] far too deeply into the debate" over health care reform. The 11th Circuit panel said that the court should not have tried to answer the question of whether tort reform improved access to healthcare but rather should have focused on the more narrow question of whether the Georgia legislature's approach was rationally related to the legislative intent. On that question, the Court of Appeals held, it was.
Thus, for the time being at least, Georgia's two-year limitation on medical malpractice actions stands.
At least two tort reform cases are now pending before the Georgia Supreme Court:
Atlanta Occuloplastic Surgery v. Nestlehutt: Plaintiff was awarded actual damages of $115,000 and punitive damages of $1.15 million. Under S.B. 3's cap on punitive damages, the punitive award was required to be reduced to $350,000. The trial judge ruled that the cap on punitive damages violated Georgia's Constitution under various theories. The Georgia Supreme Court has heard oral argument on the appeal and a ruling is expected soon. (Background: Atlanta Journal Constitution).
Gliemmo v. Cousineau: Plaintiff sought treatment at a hospital emergency room for a severe headache. The attending doctor diagnosed the patient as having a stress-induced headache, prescribed valium and discharged the plaintiff. The plaintiff subsequently suffered a stroke and incurred significant injuries. Georgia's S.B. 3's limits the liability of an emergency room doctor to gross negligence only as shown by "clear and convincing evidence."
The plaintiff challenged the constitutionality of the statute before the trial court claiming that (1) the gross negligence standard is vague and in conflict with another Georgia statute that requires "a reasonable degree of care and skill" in medical malpractice actions; (2) the statute denies similarly situated plaintiffs equal protection under the law; (3) the bill under which the statute was promulgated violates the Georgia Constitution's "one subject rule"; and (4) the statute is an unconstitutional special law.
The trial court upheld the statute and the plaintiff's appeal has been argued before the Georgia Supreme Court. A ruling is expected shortly. (AMA Amicus Brief.)