Access To Justice

The fight over tort reform goes on.  The current venue is Atlanta, Georgia.  As reported recently in the Atlanta Journal Constitution, a case currently being heard by the Georgia Supreme Court will decide whether aspects of the 2005 Georgia tort reform law should be upheld.

Specifically, the 2005 reform law required plaintiffs to prove “gross negligence” in order to succeed in medical malpractice suits against ER physicians and hospitals.  That standard is extremely difficult to meet, even when victims can demonstrate malpractice.

Let’s look at the Georgia case, and see what I mean.  According to the Georgia case involved:

“ pre-trial appeal pursued by Carol Gliemmo, who went to the emergency room at St. Francis Hospital in Columbus on April 22, 2007, after experiencing a sudden snapping in her head and a throbbing behind her eye. Gliemmo’s lawyers say that, instead of giving their client a CAT scan, the ER doctor blamed her headache on high stress, prescribed Valium and sent her home. Gliemmo screamed in pain as she was leaving, her lawyers say.”

She ultimately suffered a stroke and now suffers from paralysis and neurological damage.

The Georgia case is not the only challenge being made in appeals courts to so-called “tort reform” laws.  In fact, another Georgia case and a court in Maryland will decide the fate of caps on non-economic damages in medical liability cases.  In each state, laws were passed capping jury awards.  Lawyers are arguing that such caps are unconstitutional because they deny the victim equal protection under the law.

Ultimately the medical malpractice debate comes down to victims of malpractice interests against the interests of the doctors and their insurance companies.  In fact, nothing demonstrates this more than the facts of one of these cases:

Oral arguments in Atlanta Oculoplastic Surgery v. Nestlehutt on September 15th. That case is about Betty Nestlehutt a 71 year old woman who underwent  simultaneous cosmetic surgery procedures, a CO2 laser resurfacing and full facelift which apparently damaged her facial blood supply so severely that her facial skin literally came off, leaving her horribly disfigured.  She sued and the jury returned a verdict of around $900,000 in non-economic damages which exceeded the $350,000 cap under Georgia law. The judge in the case declared the statute capping a jury’s verdict unconstitutional.  That decision was appealed by the Defendant.

The tort reform debate wages on, but around the country, appeals judges are looking at cases like the one involving Betty Nestlehutt and beginning to question whether medical malpractice liability caps really make sense.