Video that will change the way you think: Nestlehutt

And the opinion here:

From the opinion:

Because the amount of damages sustained by a plaintiff is ordinarily an issue of fact, this has been the rule from the beginning of trial by jury. See Charles T. McCormick, Handbook
on the Law of Damages § 6, p. 24 (1935).

The determination of damages rests “‘peculiarly within the province of the jury.’” (Citation omitted.) Dimick v. Schiedt, 293 U. S. 474, 480 (3) (55 SC 296, 79 LE 603) (1935).

We conclude that the noneconomic damages caps in OCGA § 51-13-1 violate the right to a jury trial as guaranteed under the Georgia Constitution.8

Caps undermine accountability and don’t deliver cost savings.

GTLA member and Communications Committee Chairman Andy Childers wrote the following piece appearing in the AJC today:

Caps undermine accountability and don’t deliver cost savings.

By C. Andrew Childers

We’ve been told for so long that lawsuits and large jury verdicts are the reason for our excessive health care costs that, despite the absence of any factual basis for such an allegation, some still think it’s true.

Supporters of so-called tort reform claim that the threat of lawsuits forces doctors to order unnecessary or excessive tests and procedures to protect themselves — a phenomenon they call “defensive medicine.”

In reality, both the Congressional Budget Office and the Government Accountability Office under President George W. Bush cast serious doubts as to whether defensive medicine even exists.

The town of McAllen, Texas, may illustrate this point best, as it is the home of the most expensive health care in the nation. Despite having caps on damages an injured victim may recover, doctors in McAllen still routinely order excessive testing and procedures. They don’t do so out of fear of lawsuits — Texas law already immunizes them.

They do so because the fee-for-service structure set up by the health insurance industry actually encourages doctors to order them. The more tests and procedures doctors perform, the more they get paid. After Texas capped damages, allowing negligent doctors to harm patients without the fear of lawsuits, the number of medical malpractice complaints to the Texas State Medical Board actually rose from 2,942 to 6,000 in just one year.

During the debate over reforming our health care system, tort reform — and more specifically, caps on damages a victim may recover no matter how badly he or she is injured — has been slyly added to the mix by the those out to derail health care reform at any cost. The facts prove that placing arbitrary limits on medical negligence verdicts would have little or no impact on the overall costs of health care.

The New England Journal of Medicine published a study concluding that “portraits of a malpractice system that is stricken with frivolous litigation are overblown.” The National Bureau of Economic Research found that tort reform laws do not avert physician shortages nor do they lead to better patient care.

Data from the American Medical Association shows that the number of practicing physicians has actually been increasing across the board for many years. And the number of physicians is significantly higher in states without caps on damages.

In most states, malpractice premiums have continued to go up, while the number of malpractice claims filed has remained stable or has gone down. Less than 1 percent of all civil cases are malpractice cases, and 48 states already have malpractice limits. And yet, the cost of health care continues to skyrocket.

In the U.S., preventable medical errors are the leading cause of accidental death — and the sixth leading cause of death. A study by the Institute of Medicine found that 98,000 Americans die each year as a result of this preventable negligence. Just 6 percent of doctors are responsible for nearly 60 percent of negligent care — and the courts are the only effective means of holding them accountable. But capping damages a victim may recover undermines this accountability.

Our forefathers devised a fair and just way for citizens to seek justice when someone harms them — through a trial before a jury. They didn’t believe that government should predetermine the outcome of a trial by limiting how juries assess individual cases. Taking away patient rights — by capping damages and limiting their 7th Amendment right to trial by jury — does not improve the quality of our health care system or produce cost savings. Health care reform should be about making sure that every American has access to quality, low-cost health care, not about limiting the constitutional rights of innocent patients harmed by preventable medical negligence.

C. Andrew Childers, an attorney with Childers & Schlueter, is a member of the Georgia Trial Lawyers Association.

Editorial in the Marietta Daily Journal

Joe Kirby, Editorial Page Editor of the Marietta Daily Journal pens a great column:

No Miracle Cure
by Joe Kirby
Columnist
September 20, 2009 01:00 AM

Let's say you go to the doctor or surgeon for what is supposed to be a routine procedure, like a colonoscopy or facelift. But thanks to the doctor's or hospital's negligence or ineptitude, the outcome is anything but routine. For a Marietta woman whose case was heard last week by the Georgia Supreme Court, the outcome was horribly disfiguring facial scars - scars so severe her lawyers describe the photographs of them as too gruesome for public distribution.

"Too bad," say tort reform-minded lawmakers around the country about the victims in such cases.

They are pushing to put caps on damage awards in malpractice lawsuits brought in the wake of such cases. In fact, the Georgia Legislature already imposed such caps back in 2005 shortly after the Republicans took control of that body for the first time in more than a century. They capped "pain and suffering" awards (as opposed to economic damage awards) at just $350,000.

I'm sure that $350,000 is more than enough to ease the pain of a mangled face. Aren't you?

And what about the case of an unfortunate Fulton County infant, who, thanks to a botched circumcision in 2004, will go through life missing a third of his penis? I'm sure that every last one of the males reading this column feels that $350,000 would be more than adequate compensation for spending the rest of their life missing a third of his penis. Especially any tort reform-minded congressmen or state legislators, apparently.

Many tort reformers in Georgia and around the country are enamored with the notion that malpractice reform should be the cornerstone of any effort to improve the nation's health care system. They want to make it much harder to pursue meritorious medical malpractice lawsuits and want to cap awards at ridiculously low levels in order to try to dissuade people from filing them, and attorneys from taking them.

The 2005 Georgia General Assembly was on the cutting edge of med-mal reform back in '05, you might say. The law it passed, with its $350,000 cap on non-economic damages, is so severe - so hard-hearted - that if your stay-at-home spouse, or your young child (i.e., anyone who is not employed or who lacks an earnings history), is inadvertently killed or maimed for life by a doctor, the most the plaintiff can hope to ever recover via a jury trial is that $350,000.

The state Supreme Court last week heard arguments in the case brought by Betty Nestlehutt, now 75, of Marietta, whose doctor inadvertently shut off nearly all of the flow of blood to the skin of her face during plastic surgery, causing gaping wounds to later open up across the lower half of her face as the skin died.

After hearing all the evidence, the 12-person jury found her pain and suffering damages were worth $900,000. Her doctor's lawyer argues that that amount should be automatically reduced to $350,000. The Supreme Court must decide on the constitutionality of the caps - that is, whether, as Justice Carol Hunstein wondered aloud last week, the caps have turned the right to trial by jury into a "hollow right."

Tort reform advocates argue that soaring malpractice insurance fees are driving doctors out of Georgia and into retirement; hence the need for the caps. Yet in Georgia, doctors are not required to even carry malpractice insurance. All I know is that the phone book is still overflowing with listings for doctors - just as it was before the awards were capped - and that WellStar Kennestone Hospital's "footprint" atop the hill on Church Street keeps getting bigger and bigger.

Those pushing for med-mal reform like to portray it as "jackpot justice." And yes, there have been abuses, such as John Edwards' shamelessly over-the-top - and eventually extremely lucrative - summations to juries in a string of lawsuits on behalf of babies who he claimed suffered cerebral palsy because their doctors failed to perform Caesarian deliveries.

And Republicans also argue, credibly I think, that the fear of lawsuits has caused doctors to practice "defensive medicine" - ordering multitudes of expensive but often unnecessary tests, mostly for "CYA" reasons in case they are later sued.

Yes, we should be very wary of the pitfalls of Obamacare, but be ware as well of tort reformers' claims that malpractice reform is the miracle cure that will, almost by itself, cure all that ails the country's medical system.

There has to be a better way of protecting doctors from frivolous lawsuits than by the kind of arbitrary, one-size-fits-all jury-award caps passed by the Georgia General Assembly. Those caps have nothing to do with the evidence of the case and serve only to hurt catastrophically injured patients whose claims have already passed muster by a judge and jury.

If you don't believe me, just ask Ms. Nestlehutt - or wait a few years, and ask that poor kid from Fulton County.

Joe Kirby is Editorial Page Editor of the Marietta Daily Journal and author of "The Bell Bomber Plant."

Supreme Court to Hear Oral Arguments on Caps on Damages

Supreme Court to Hear Oral Arguments on Caps on Damages
Statute is challenged after a medical malpractice victim’s face
literally falls off after surgery

Atlanta, GA-- On Tuesday, September 15, 2009, the Georgia Supreme Court will hear oral arguments regarding the constitutionality of the provision that caps the amount of damages a victim of medical malpractice can secure from a jury. The plaintiffs in the case of Betty Nestlehutt and Bruce Nestlehutt v. Atlanta Oculoplastic Surgery, P.C., will argue that the Georgia Supreme Court should uphold the trial court judge’s finding that O.C.G.A. § 51-13-1, as enacted in 2005, is unconstitutional.

The case arose from a medical malpractice claim filed by Adam Malone and Frank Ilardi on behalf of their clients Betty Nestlehutt and her husband Bruce Nestlehutt in the Fulton County State Court in October of 2008. Married for over 50 years, the Nestlehutts raised two children and they shared a real estate business. Bruce handled the behind-the-scenes work, and Betty, a people-person by nature, focused on client and public interaction. Competition was tough and as Betty aged she found that more and more clients seemed to prefer younger agents. So, at seventy-one years of age, Betty Nestlehutt, after much thought and consideration, sought consultation with Dr. Harvey P. Cole of Atlanta Oculoplastic Surgery, P.C. concerning bags under her eyes and lines around her mouth. Dr. Cole recommended she undergo several surgical procedures including a simultaneous CO2 laser resurfacing and full facelift.

Having both the CO2 laser resurfacing and full facelift done together is well-known by practicing cosmetic surgeons to be risky, as the chance of damaging the facial blood supply is greatly increased on a patient of Betty’s age and complexion. However, based on her doctor’s recommendation, Betty went through the combination of procedures and the blood supply to her face was, in fact, severely damaged.

After the surgery, the skin on Betty’s face struggled to live without its usual blood supply and after a 3-week period, died completely, leaving the once fair-skinned wife and mother with huge, gaping wounds from her temple to her jaw line, covering both sides of her face and over both of her cheeks to her chin. Betty Nestlehutt’s face, quite literally, fell off.

“Betty Nestlehutt was the face of her real estate business,” said Malone. “Her face was so horrifically disfigured that she was no longer able to even leave her house. Photographs of her disfigurement are even too gruesome for public distribution. The damage is permanent. Years later she has to wear layers of special makeup to try to give the appearance of normalcy.”

After hearing the testimony and considering all of the evidence, a jury of 12 returned with a verdict in the Nestlehutts’ favor which included a recovery of money damages for her past and future medical expenses, for damage to her relationship with her husband and $900,000 in “non-economic” damages for the devastation of her quality of life. The verdict exceeded the $350,000 cap on noneconomic damages enacted as part of SB 3 in 2005. Judge Diane Bessen declared unconstitutional the statute capping a jury’s verdict and now her decision, upon the defendant’s appeal, is before the Supreme Court.

“Judge Bessen’s order appropriately concluded that a one-size fits all predetermined cap on damages violates several protections guaranteed by the Georgia Constitution,” said Malone. “Her order balances the rights of all Georgians, young and old, rich and poor, and restores the guarantees set forth by our Constitution that were stripped away in 2005.”

Judge Bessen’s order declares the caps on damages provision unconstitutional because it violates three basic constitutional tenets: the right to trial by jury, the separation of powers doctrine and equal protection of the laws.

Under SB 3, the jury’s deliberation regarding the amount of damages to be awarded is preempted by a legislatively imposed cap—no matter how severe or catastrophic the case before them. Historically, a jury had the ability to decide the fate of its peers constrained only by the particular facts of an individual’s case, as the Founding Fathers intended. Thomas Jefferson once said, “I consider trial by jury as the only anchor yet imagined by man, by which a government can be held to the principles of its Constitution.”

In her order, Judge Bessen wrote:

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. If the amount of noneconomic damages awarded by the jury exceeds the statutory cap, this Code section automatically and arbitrarily reduces the verdict, without consideration of the evidence, the record, or any other fact produced at trial and found by the jury. The limitations imposed by O.C.G.A. 51-13-1 render the right of the jury to assess damages meaningless… The cap so interferes with the determination of the jury that it renders the right of a jury trial wholly unavailable.

Additionally, Judge Bessen also found that the cap on damages violates the Separation of Powers Doctrine contained in the Georgia Constitution. Three other states’ supreme courts, with similar constitutional provisions, also have struck down caps on damages on this basis. The Georgia Constitution states that: “The 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.” One distinct function of the judicial branch is that judges have the exclusive right to award to a party a “remittitur” – or a new trial – if a judge finds that a verdict is either excessive or inadequate. Judge Bessen’s order declares the cap on damages statute to be a “legislative remittitur” and that the legislature has unconstitutionally invaded the exclusive role of the judiciary to find facts and control judgments.

“Equally important,” the judge writes, “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.”

The third violation of the Constitution Judge Bessen found was that a cap on damages violates the Equal Protection provisions of the Georgia Constitution which state: “No persons shall be denied the equal protection of the laws.” To examine this violation, Judge Bessen explored whether there was a “rational relationship” between the government’s purpose and its enacted statute which treats similar parties in very different, unequal ways.

The rational relationship test basically states that a statute may be valid as long as it has a rational relationship to a governmental purpose. In the case of SB 3, the government’s stated purpose was to “promote predictability and improvement in the provision of quality health care services and the resolution of healthcare claims..., assist in promoting the provision of healthcare liability insurance by insurance providers…, [and addressed concerns about] medical providers and facilities leaving the state and the cost of malpractice awards.” For a law to be valid, a rational relationship to those goals must be proven. Judge Bessen found that the cap on damages failed the rational relationship test completely.

In holding the cap on damages provision unconstitutional, Judge Bessen wrote:

After review, this Court finds that there is no rational relationship between statute and the expressed government interest. Most obviously, it is a complete contradiction to state that the overall quality of healthcare would be improved by shielding negligent healthcare providers from liability. In fact, as recognized by other courts, a cap on noneconomic damages actually diminishes tort liability for healthcare providers and diminishes the deterrent effect of tort law… There is absolutely no evidence that these objectives are achieved by imposing a financial burden on the most victimized of plaintiffs… Based on current statistics, limiting noneconomic damage caps is not rationally related to the state purpose of reducing medical malpractice insurance rates… it appears that this statute was enacted arbitrarily, based upon speculation and conjecture rather than empirical data.

Finally, Judge Bessen found that the cap on damages violates Equal Protection because it creates different classes of victims—those injured by healthcare providers and those injured by others and those who are catastrophically injured and those who are less severely injured. Judge Bessen penned, “The cap’s greatest impact falls on those who are most severely injured, and creates classes of fully compensated victims and those only partially compensated… Similarly, the noneconomic damages cap discriminates against low-income individuals who are unable to prove large economic damages but nonetheless may sustain large noneconomic damages.”

The President of the Georgia Trial Lawyers Association, Chris Clark, has been following this case closely.

“As a trial lawyer, I represent the person, who, through no fault of their own, has been injured—sometimes severely. They miss work, accrue medical bills and—often most important to them—they suffer a loss of the quality of life that they once had,” said Clark. “Betty Nestlehutt’s severe disfigurement – which she had no part in creating – has diminished her quality of life and, in turn her husband’s and her family’s. Judge Bessen’s order was fair, upheld our Constitution, and reflected the rule of law that has stood firm since the inception of this nation.”

The argument on Tuesday was prepared by Malone and attorneys Darren Summerville of Bird Law Group, P.C. and Michael Terry of Bondurant, Mixson & Elmore, LLP. AARP, Voices for Georgia’s Children, Georgia Women for a Change and Georgia Watch all filed Amicus Briefs in support of Betty and Bruce Nestlehutt.

###

Tort Reform is Just a Distraction

Marietta Daily Journal
Guest Column
August 13, 2009

Tort Reform is Just a Distraction
98,000 Americans die each year from medical errors; let’s focus on real healthcare solutions

By: Lance Cooper

Whenever health care reform is proposed, some people instinctively think more so-called ‘tort reform’ should be the solution to the debate (see Marietta Daily Journal, 8-10-09). This effort diverts us from the real issue at hand—affordable, attainable and safe healthcare. Insurance companies and others who are fearful of accountability for medical negligence regularly employ the “Deny and Distract” routine. First, when faced with hard numbers and legitimate research placing blame not on lawyers, but on their own industries, they ‘Deny’ any accountability. Then they employ methods of ‘Distraction’ to tear us off the course to finding real solutions. ‘Tort reform’ is such a distraction.

Supporters of ‘tort reform’ argue that the threat of lawsuits makes doctors order unnecessary tests to protect themselves—a phenomenon they call “defensive medicine”—and yet there is no evidence to support those claims. Studies conducted by the Congressional Budget Office and the Government Accountability Office have all cast doubts that such a thing called ‘defensive medicine’ even exists. Take McAllen, Texas, home of the most expensive health care in the country—despite having draconian ‘tort reform’ laws and the same caps on damages that we have in Georgia, the doctors routinely order excessive testing and procedures. They do so not for fear of lawsuits but because the fee-for-service structure actually encourages them to. In other words, the more tests they perform, the more they get paid.

Claims of ‘frivolous lawsuits’ driving up healthcare costs is another regularly deployed method of distraction. Georgia, and the rest of the nation, already has laws against filing these so-called “frivolous lawsuits.” Comprising leaders of the medical field, The New England Journal of Medicine published a study concluding that “portraits of a malpractice system that is stricken with frivolous litigation are overblown.” And the overall number of medical malpractice cases is low; less than 1% of all civil cases are medical malpractice cases.

Another frequently echoed distraction is the notion that doctors are fleeing and causing physician shortages because of liability concerns and increased malpractice insurance premiums caused by lawsuits. Once again, this distraction is false. Data from the American Medical Association (AMA) show that physician numbers have been increasing across the board for many years. And the number of physicians is significantly higher in states without caps on damages. The National Bureau of Economic Research found that ‘tort reform’ laws do not avert physician shortages, nor do they lead to greater, more efficient patient care.

Patient care is what really matters at this point. Preventable medical errors and mistakes is the leading cause of accidental death in the nation. Just 6% of doctors are responsible for nearly 60% of negligent care—and the Civil Justice System is the only effective means of holding them accountable. In Texas, after the $250,000 cap on damages was imposed, thereby freeing negligent doctors from accountability, the number of complaints against Texas doctors to the Medical Board rose from 2,942 to 6,000 in just one year. Proposed ‘tort reform’ measures do nothing but fill the coffers of malpractice insurance companies—the same companies who have raised premium rates on the doctors while civil claims have remained stable and, in most states have gone down.

Further dismantling our uniquely American system of accountability by enacting more ‘tort reform’ would be disastrous. We can’t forget what just happened with Wall Street vs. Main Street or the crash of AIG. The insurance industry and their special interest groups are utilizing a tired relic of gotcha-politics—blame the lawyers and hope Americans forget about the record bonuses being paid to insurance industry executives after the taxpayers bailed them out. Amazingly, insurance special interest groups with their call for more ‘tort reform,’ want to deprive Americans who just bailed them out of constitutionally protected access to our judicial system. Let’s ignore those distractions. Taking away patients’ Constitutional right to seek justice in a fair court of law, when they have been injured through no fault of their own, does nothing to improve our health care system nor does it increase patient safety. And it is, simply, un-American.

Lance Cooper of Powder Springs is past president of the Georgia Trial Lawyers Association and is a past president of the Cobb Trial Lawyers Association. He holds a degree in economics from Cal-Berkeley and a law degree from Emory University.

http://www.mdjonline.com/content/index/showcontentitem/area/1/section/17/item/138109.html

Caps on Damages Case Settles

For Immediate Release
October 31, 2008
rdehart@gtla.org

Caps on Damages Case Settles in Favor of Mr. Park

Atlanta, Georgia—Yesterday afternoon, the case of Park v WellStar Hospital settled for an undisclosed amount. The case was on appeal to the Georgia Supreme Court following a Fulton Superior Court ruling that Georgia’s statutory limit on damages in a medical malpractice case was unconstitutional. The defendants’ appeal was scheduled for oral argument before the Georgia Supreme Court next Monday.

“We are pleased that the Park family has received justice,” said Rob Roll, an attorney for Park. “This case truly represented the uphill battle facing Georgia’s families since SB 3 became law. While this case was closely watched, we have never lost sight of the paramount importance of the best interest of our clients. It is clear that the defendants did not want the caps provision to be scrutinized by the Georgia Supreme Court. And the Parks deserved and received justice.”

The case was filed by Plaintiff Cheon Park, 59, who fell from a ladder at his home in late 2006. He was taken to WellStar Douglas Hospital by ambulance with complaints of pain in his neck, shoulder, arm and pelvis. Once at the hospital, doctors treated Park for a dislocated shoulder and then released him that same evening. Upon his discharge, Park could not stand on his own and had to be lifted by hospital staffers and his loved ones into his car. Just a few days later Park, still in pain, was taken to Grady Hospital where X-Rays revealed he had a severely damaged spine. Park is a now a C4 quadriplegic and confined to a wheelchair.

The Parks filed suit in Fulton County Superior Court against the Hospital. During that tumultuous time, the Parks learned of SB 3. In 2005, the Georgia Legislature passed a sweeping, so-called “tort reform” measure. Claims of “jack-pot-justice” and “frivolous lawsuits” flooded the halls of the Gold Dome. In one fell swoop, SB 3 drastically compromised the Constitutional Rights of all Georgians. In some aspects SB 3 attempted to limit Georgia citizens’ Constitutional Rights and in other aspects those Rights were completely eradicated.

After receiving the news that a chance for a financial recovery had been destroyed just one year before, the Park family asked the judge for a ruling on the two main components of SB 3— the application of a gross negligence standard in emergency rooms and the cap on ‘non-economic,’ or ‘quality of life,’ damages. Last May, Judge Marvin Arrington ruled that Georgia’s medical malpractice cap on non-economic damages was indeed unconstitutional. He had yet to release his decision on the gross negligence standard.

“Judge Arrington’s decision addressed several aspects of caps on damages that could not pass Constitutional muster,” said Trent Speckhals, an attorney for the Park family. “His ruling addresses this state’s—and this nation’s—fundamental value of a citizen’s right to trial by jury. His commonsense ruling balances the rights of all Georgians, young and old, rich and poor, and restores the guarantees set forth in our Constitution.”

Judge Arrington’s decision may still be used as a persuasive decision in future civil suits.

“This conversation about the unconstitutionality of SB 3 is not over. But what is most important now is that the Park family can try to piece their lives back together,” said GTLA President, Fred Orr. “Trial lawyers are an impressive bunch of people. And this latest case proves that. Our profession knows that there is nothing more important than the client you were hired to obtain justice for. The Park family may have struggled for the next several years while their case played out in court. Instead, now they can put this behind them and start rebuilding their future. I commend the attorneys who represented this deserving family.”

Rob Roll and the attorneys at Watkins, Lourie, Roll & Chance, PC, Trent Speckhals of Speckhals and Cora, Michael Terry and Frank Lowry of Bondurant, Mixson & Elmore, and Ned Miltenberg of the Center for Constitutional Litigation, PC were all instrumental in the representation of the Parks in this case.

###

The Georgia Trial Lawyers Association
Protecting the Constitutional Promise of Justice for all by
Guaranteeing the Right to Trial by Jury,
Preserving an Independent Judiciary, and
Providing Access to the Courts for all Georgians

www.gtla.org

Caps on damages unconsitutional

For Immediate Release
(404) 376-3495, Rebecca DeHart


Atlanta—The Superior Court of Fulton County, Georgia this week declared unconstitutional Georgia's medical malpractice cap on non-economic damages. The decision by Judge Marvin Arrington resulted from a case filed by Plaintiff Cheon Park.

Park, 59, fell from a ladder at his home in late 2006. He was taken to WellStar Douglas Hospital by ambulance with complaints of pain in his neck, shoulder, arm and pelvis. Once at the hospital, doctors treated Park for a dislocated shoulder and then released him that same evening. Upon his discharge, Park could not stand on his own and had to be lifted by hospital staffers and his loved ones into his car. Just a few days later Park, still in pain, was taken to Grady Hospital where X-Rays revealed he had a severely damaged spine. Park is a now a C4 quadriplegic.

“Mr. Park is now a C4 quadriplegic and will be in a wheelchair forever. He, Mrs. Park and their son are trying to piece their lives back together,” said Rob Roll, an attorney for Park. “Before 2005, Mr. Park would not have had to fight for his Constitutional Right to a trial by jury. I’m pleased to say that Judge Arrington penned a decision that upholds our Constitution and The Bill of Rights. The Parks are pleased with the decision today.”

In 2005, the Georgia Legislature passed a sweeping so-called “tort reform” measure. Claims of “jack-pot-justice” and “frivolous lawsuits” flooded the halls of the Gold Dome. In one fell swoop, SB 3 drastically changed the Constitutional Rights of all Georgians. In some aspects SB 3 limited one’s Constitutional Rights and in other aspects those Rights were completely eradicated.

The Park Family asked for a ruling on two main components of SB 3—the gross negligence standard and the cap on non-economic, or ‘quality of life,’ damages. Judge Arrington’s decision ruled exclusively on the Constitutionality of caps on damages. In a footnote he indicated that a ruling on the gross negligence standard will follow.

"Judge Arrington’s decision addressed several aspects of caps on damages that could not pass Constitutional muster,” said Trent Speckhals, an attorney for the Park family. “His ruling addresses this state’s—and this nation’s—fundamental value of a citizen’s right to seek trial by jury. His commonsense ruling balances the rights of all Georgians, young and old, rich and poor, and restores the guarantees set forth by our Constitution.”

In the decision Judge Arrington examined medical malpractice caps on damages and the plaintiff’s claim that it violated the Equal Protection Clause in Georgia’s Constitution. Equal Protection essentially states that within a group of like people, it is unconstitutional to treat some of them differently than others. He wrote, “Persons suffering the exact same personal injuries at the hands of other tortfeasors—including other professionals—are not subject to such caps.” In other words, a person hurt by the negligence of another professional—perhaps in a legal malpractice or in a products liability case—has the ability to recover the entirety of a jury’s award of damages, while a person injured by the negligence of a medical professional does not.

And the same can be said for the defendants. Under SB 3 one group of professionals are held to a lower standard of expected conduct than others. Judge Arrington wrote, “…One category of professional defendants have been singled out for special protection, with the result that their victims have been singled out for special disadvantages and limitations.”

Judge Arrington found the Plaintiff’s argument that a cap on damages violates the Constitutional Right to trial by jury to have merit as well. He wrote, “The court agrees with plaintiffs that a fundamental right is involved in this case if for no other reason that the fact that the jury’s authority to award the amount of damages that it concludes to be appropriate for non-economic injury is limited by the caps.”

Under SB 3, the jury’s deliberation regarding the amount of damages to be awarded is pre-empted by a legislatively imposed cap—no matter how severe or catastrophic the case before them is. Historically a jury has had the ability to decide the fate of its peers. Founding Father Thomas Jefferson said, "I consider trial by jury as the only anchor yet imagined by man, by which a government can be held to the principles of its Constitution."

Within the circumstance where the will of the jury is circumvented by the legislative statute enacting a cap on damages, Judge Arrington penned, “…There is no doubt that the caps go to the core of a party’s right to have a jury determine his or her claims…To that extent, the jury’s award is a meaningless exercise.”

Another point of contention was the defendant’s argument—the very same argument used to hasten the passage of SB 3 in 2005—that caps on damages has become a legislative necessity to maintain a functioning medical community allegedly facing skyrocketing malpractice insurance premiums. Judge Arrington wrote in response to this claim, “At the outset, the court finds unconvincing the defendants’ contention that non-economic damages had to be limited, as they contend, in order to allow the medical profession to function effectively.”

Scare tactics claiming Georgia was losing its doctors—particularly OB/GYNs and other specialists—were at the heart of the debate in 2005. Indeed, the cost of medical malpractice insurance was on the rise. However, the supposed correlation that damages awarded to citizens harmed by the insured doctors and the increasing cost of insurance remains unfounded. Price-gouging by the insurance industry—not litigation—was the cause.

A 2005 study conducted by former Missouri Insurance Commissioner, Jay Angoff, found that the insurance companies have been price-gouging doctors by drastically raising their insurance premiums, even though claims payments have been flat, or, in many cases, decreasing. According to the annual statements of the 15 largest insurance companies, the amount malpractice insurers collected in premiums increased by 120.2% between 2000 and 2004, while their claims payouts rose by only 5.7%.1

Furthermore, a 2008 study by researchers at the Harvard School of Public Health and George Mason University has found that the supply of OB/GYNs is unaffected by both medical malpractice insurance premiums and the presence of tort reforms in a state. “We found that the supply of OB/GYNs had no statistically significant association with premiums or tort reforms. Our results suggest that most OB/GYNs do not respond to liability risk by relocating out of state or discontinuing their practice, and that tort reforms such as caps on noneconomic damages do not help states attract and retain high-risk specialists.” 2

“The arguments used in 2005 were suspect then—and have been proven to be false now,” said Speckhals. “The spin on statistics used to protect large corporations and the insurance industry has steered us away from reality—the reality of real people, right here in Georgia, who are struggling to regain their lives after they were harmed by someone else’s negligence.”

Speckhals praised Judge Arrington’s ruling as it addressed the economic circumstances faced not by multi-billion dollar corporations but those faced by the families in this state.

Judge Arrington ruled that even if there was a way to make caps on damages constitutional, it had to be done in a way that did not have a largely disparate impact on wealthy individuals compared to poor individuals. “..The statute effectively puts substantial limitations on the rights of the poor and middle class to recovery while leaving the right to virtually unlimited recoveries unimpeded for the wealthy… The limitation on non-economic damages falls, instead, on the poor, the unemployed, the elderly, the homemaker who does not work outside the home, and others with little earnings,” wrote Judge Arrington.

Judge Arrington cited another reason why caps on damages are unconstitutional. A person who has a minimal injury may receive complete compensation of economic and non-economic damages because they will total less than the cap. A person, like Mr. Park, who was catastrophically injured by the negligence of another will not have the ability to receive full compensation. Wrote Judge Arrington, “Someone who is profoundly injured, as the plaintiff here, will receive, if he prevails, compensation for only a small percentage of his actual non-economic injury.”

“It always breaks my heart when I hear of families like the Parks who are the victims of someone else’s negligent conduct and they are unable to seek justice because our the law passed in 2005 [SB 3] prohibits them from doing so,” said Fred Orr, President of the Georgia Trial Lawyers Association. “The ruling shines a light on the challenges that real people in this state face when they are harmed by acts of negligence. To eradicate a certain class of people’s rights is not only immoral, it’s unjust, and Judge Arrington recognized this.

“I expect this decision to be appealed and that the discussion surrounding this important issue will continue,” stated Orr. “Judge Arrington obviously put a tremendous amount of scholarship and research into his decision. And I hope the coming discussions and debates surrounding this case will continue with the same levels of respect for our Constitution and for the families who live with the consequences of negligent acts by others.”

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1. “Falling Claims and Rising Premiums in the Medical Malpractice Insurance Industry,” Jay Angoff, 7/05, http://www.centerjd.org/ANGOFFReport.pdf.

2. “A Longitudinal Analysis of the Impact of Liability Pressure on the Supply of Obstetrician-Gynecologists,” Y. Tony Yang, David M. Studdert, S. V. Subramanian, and Michelle M. Mello, Journal of Empirical Legal Studies, Volume 5, Issue 1, 21–53, March 2008

Caps On Damages Ruled Unconstitutional

For Immediate Release
(404) 376-3495, Rebecca DeHart

Atlanta-- The Superior Court of Fulton County, Georgia today declared unconstitutional Georgia's medical malpractice cap on non-economic damages. The decision by Judge Marvin Arrington resulted from a case filed by Plaintiff Cheon Park.

Park, 59, fell from a ladder at his home in late 2006. He was taken to WellStar Douglas Hospital by ambulance with complaints of pain in his neck, shoulder, arm and pelvis. The ambulance attendants secured Parks to a backboard and immobilized his back and neck.

Once at the hospital, doctors treated Park for a dislocated shoulder and other injuries and then released him that same evening. Upon his discharge, Park could not stand on his own and had to be lifted by hospital staffers and his loved ones into his car. Just a few days later Park, still in pain, was taken to Grady Hospital where X-Rays revealed he had a severely damaged spine. Park is a now a C4 quadriplegic.

Faced with medical bills, costs pertaining to disability, economic damages, and quality of life damages arising from medical malpractice, Park—who will remain in a wheelchair for the rest of his life-- and his family pursued justice in our Courts. Upon filing his case, Park learned that Georgia’s law had recently changed regarding the definition of negligence in medical care with the Legislature’s passage of SB 3 in 2005. He learned that because he received treatment in the Emergency Room, his doctors were allowed to provide a much lower standard of care than doctors practicing in other locations. Parks then learned that his right to a jury trial was predetermined by a cap on the damages that a jury could award.

“Mr. Park is now a C4 quadriplegic and will be in a wheelchair forever. He and Mrs. Park are trying to piece their lives back together,” said Rob Roll, an attorney for Park. “Before 2005, Mr. Park would not have had to fight for his Constitutional Right to a trial by jury. I’m pleased to say that Judge Arrington penned a decision that upholds our Constitution and The Bill of Rights. The Parks are pleased with the decision today.”

Today’s decision ruled exclusively on the Constitutionality of caps on damages. The decision will likely be challenged and will move to a higher court.

Fred Orr, President of the Georgia Trial Lawyers Association said of the decision, “It always breaks my heart when I hear of families like the Parks who are the victims of someone else’s negligent conduct and they are unable to seek justice because our law prohibits them from doing so. Today’s decision shines a light on the challenges that real people in this state face when they are harmed by acts of negligence. To eradicate a certain class of people’s rights is not only immoral, it’s unjust, and Judge Arrington recognized this.

“I expect this decision to be appealed and that the discussion surrounding this important issue will continue,” stated Orr. “Judge Arrington obviously put a tremendous amount of scholarship and research into his decision. And I hope the coming discussions and debates surrounding this case will continue with the same levels of respect for our Constitution and for the families who live with the consequences of negligent acts by others.”

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Illinois Caps on Noneconomic Damages Struck Down by County Circuit Court

Judge Diane Larsen of the Cook County Circuit Court in Illinois declared the state’s law on caps on non-economic damages in medical malpractice cases unconstitutional last Tuesday, November 13th. The decision, Lebron v. Gottlieb Memorial Hospital, found that the caps, enacted by the Illinois legislature at $500,000 per case for doctors and $1 million per case for hospitals, intrude upon the responsibilities of the judicial branch of government—thereby violating the guarantee of a separation of powers.

The Illinois legislature has capped non-economic damages three separate times over thirty-one years—and the courts have found each of those efforts to be unconstitutional. Robert S. Peck of the Center for Constitutional Litigation, PC (CCL), argued the case for the plaintiffs. Also representing Abigail Lebron in the matter were Chicago lawyers Jeffrey Goldberg and Todd Smith, as well as CCL lawyer Francine Hochberg. This case will likely be appealed and heard by a higher court