Ga. Supreme Court Upholds Key Medical Malpractice Law Requiring Proof of Gross Negligence for Emergency Room Physicians

Another legal ruling in the ongoing debate over tort reform – this one from the State of Georgia. MSNBC is reporting (citing Associated Press) that the Georgia Supreme Court, in a divided 4-3 opinion, has upheld a 2005 state law that requires patients to prove “gross negligence,” rather than ordinary negligence, in order to prevail in a medical malpractice case against emergency room physicians.

A Georgia woman, who suffered a stroke after receiving allegedly negligent treatment at an emergency room, challenged the constitutionality of the 2005 law, claiming that it created an insurmountable hurdle at trial.  The Georgia Supreme Court disagreed.

The court’s majority opinion, penned by Justice George Carley, found that it was “entirely logical” for lawmakers to approve the legislation in hopes of stemming the rising cost of medical malpractice insurance.

Usually, the focus of tort reform legislation has been in either instituting a cap on damages, or restricting attorneys’ fees, or both. In 2005, however, the Georgia legislature implemented an additional mechanism that was designed not to limit the amount of recovery in successful lawsuits but was instead specifically designed to make it more difficult for injured patients to prove their case at trial.

Prior to the law enacted in 2005, in order for a patient to prevail in a medical malpractice action, the patient had to be able to prove that the defendant doctor was negligent – i.e. violated the standard of care, which has usually been held to mean that the doctor failed to do what a reasonably competent doctor would have done in the same or similar circumstances. Under the new law in 2005, however, patients were required to prove that the defendant doctor (at least in the emergency room setting) committed “gross negligence,” which is a much higher level of negligence, generally defined as near-total disregard for the rights of others, reckless disregard, or willful or wanton indifference to the consequences of one’s actions.

Clearly, forcing patients to meet this higher burden will make it more difficult for injured patients to sue emergency room physicians, which was the very intent of the Georgia legislature. The ruling also means that negligent doctors who would have been found liable under traditional law will now get off scot-free, leaving injured patients with no recovery.

The same court is expected to rule later this month on the constitutionality of Georgia’s cap of $350,000 on damages for pain and suffering.

Maryland’s Cap and a Message from the former MAJ President re the Goings-On in Annapolis

Normally I don’t post materials from my News Feeds on Facebook – however – when you see a particularly well written piece that needs to ‘get out there,’ I make an exception.  The following is a wall posting from the past President of the Maryland Association for Justice, Wayne Willoughby.

by Wayne M. Willoughby                            
Past President, Maryland Association for Justice

In 2004, hysteria struck Annapolis. Hordes of physicians in white coats descended upon the State House demanding so-called “tort reform” as the fix to their rising malpractice premiums. The Maryland Association for Justice (then known as the Maryland Trial Lawyers Association) stood virtually alone in opposing the fear-driven throng.

MAJ retained a highly respected insurance analyst, Jay Angoff, to examine the recent malpractice premium hikes. Mr. Angoff was the third-longest serving insurance commissioner for the State of Missouri and previously had served the State of Maryland as the State’s insurance expert in other matters. His conclusion: the malpractice premium increases that caused the panic were totally unjustified; the doctors were being gouged by their insurance carrier.

So, MAJ advised the members of the General Assembly that they were being hoodwinked. What was needed was aggressive insurance regulation to prevent carriers from gouging doctors, not new laws depriving injured patients of full and fair justice in our courts.

Nevertheless, swept up in the frenzy, the General Assembly enacted House Bill 2 containing a premium subsidy for physicians and some measures that severely punished injured patients. One such measure lowered the damage cap on wrongful death and survival claims to the point that the life of a malpractice victim in Maryland is now worth at law only 50% of the life of a victim of other forms of negligence.

Time proved MAJ was correct, the malpractice “crisis” of 2004 had been a cruel hoax on the public and the General Assembly. Within seven months after passage of HB 2 – years before HB 2’s tort “reforms” could affect claims payouts and premiums – Maryland largest malpractice carrier, Medical Mutual, announced it would not increase premiums for 2006.

For 2007 the carrier lowered its base premiums by 8% and announced a $68.6 Million dividend for its insured physicians. With a new consumer friendly Governor in office, and his new insurance commissioner at the helm, Medical Mutual’s move was greeted by the Maryland Insurance Administration with a cease and desist order.

As a result, the taxpayers of Maryland were able to recoup from Medical Mutual the approximately $84.Million that had been paid to the company for rate stabilization under HB 2. Medical Mutual’s finances were so superb that it still issued a $13.8 Million dividend to physicians and lowered its premiums 8% for 2008 despite paying $84 Million back to the State.

Then, in 2009 Medical Mutual lowered its premiums by 31% (an 11% base premium reduction and a 20% dividend for renewing physicians). Again, in 2010, Medical Mutualannounced another 31% premium reduction (11% plus 20%).

Consequently, the events after the 2004 Special Session demonstrate the truth of what MAJ has said all along: The “crisis” of 2004 was no crisis at all. It was little more than a raid on the public treasury and the legal rights of injured patients accomplished though the use of fear to manipulate public opinion and the legislature.

Although the taxpayers of Maryland have been made whole because of the decisive actions of Governor O’Malley’s insurance commissioner, and doctors have access to “available and affordable” insurance (per the official Maryland Insurance Administration’s report), there is one group that has not been made whole from the damaging effects of the contrived crisis of 2004: injured patients.

Now pending before committees of the General Assembly is a cross-filed bill to rectify this situation. House Bill 622/ Senate Bill 769 will return the damage cap on medical malpractice claims to their pre-hoax levels. If this bill is enacted, injured Marylanders once again would be treated the same under the law irrespective of whether their injury resulted from negligent medical practice, negligent driving, or a defective product.

All people who believe in civil justice should contact the members of the House Judiciary Committee and the Senate Judicial Proceedings Committee and demand that they vote in favor of HB 622/SB769.

Keep up all your hard and good  work, Wayne.

Tort Reform – Tennessee Style: ER doctors back bill ‘redefining’ malpractice – NO KIDDING!

As I was going through the listings and hashtags on my TweetDeck yesterday, I came across this tweet from a report in a Tennessee online publication – Emergency doctors back bill redefining malpractice | tennessean.com | The Tennessean. While I don’t practice in Tennessee, any trend in legislative changes affecting a patient’s right of access to the legal system is on my watch list.  

Here’s the essence of the proposed legislation according to this article:

Under the bill filed last month, the definition of medical malpractice would be changed from “negligence” to “gross negligence,” which would raise the bar for mistakes that could trigger a lawsuit.

To put this in context, Maryland and the District of Columbia, where I am licensed to practice, have many times defined “gross negligence.”  Those definitions are precisely what caused a chill to run up and down my spine when I saw the proposed change to Tennessee’s malpractice law.

In Maryland there is legislation called the Good Samaritan Act and the Fire and Rescue Company Act, which essentially provides in relevant part that in an emergency setting, only extraordinary or outrageous conduct by a person giving assistance or medical care in an emergency, or by a member of a fire company or rescue company, can be termed “gross negligence.”  For the lawyers among you, see, e.g. McCoy v Hatmaker, 763 A2d 1233 (2000).

In the District of Columbia, one case that gives multiple but somewhat common definitions for  ‘gross negligence is D.C. v Walker, 689 A2d 40 (D.C. 1997):

[Gross negligence is] [t]he failure to exercise even slight care,” and “such negligence as would shock fair-minded men.”Shea v. Fridley, 123 A.2d 358, 363 (D.C.1956).  Similarly, the United States Court of Appeals for this circuit has stated that “gross negligence implies an ‘extreme departure from the ordinary standard of care.’ ” Wager v. Pro, 195 U.S.App. D.C. 423, 428, 603 F.2d 1005, 1010 (1979).  We have applied Maryland law to define gross negligence in the driving context as “a wanton or reckless disregard for human life or for the rights of others,” and “indifference to the consequences … [which] implies malice and evil intention.” Hall v. Hague, 257 A.2d 221, 223 (D.C.1969).  * * * And our federal court of appeals, applying what it apparently perceived to be District law, has said that, “[t]o constitute willful or wanton negligence, the police actions must involve ‘such reckless disregard of security and right as to imply bad faith.’ ”      

And just what is the alleged justification for this ‘gross negligence’ in ER’s standard being proposed?  Well here you go:

“In my personal practice, if I knew that I couldn’t be sued except for things that I truly believe I should get sued over, I could eliminate half of my lab tests, two-thirds of my X-rays and 90 percent of my CT scans because all of those tests are done for my protection, not the patient’s,” said Dr. Andy Walker, a local emergency physician and vice president of the Tennessee chapter of the American Academy of Emergency Medicine. “For TennCare patients, of course, the Tennessee taxpayer is paying for that.”

Yeah – that’s my emphasis added to the above quote.  Is this doctor kidding?  He does twice the number of labs, three times the number of x-rays and ninety percent of the CT scans he orders – to protect himself, not the patient?  And his litmus test for getting sued is what?  – “… things that I truly believe I should get sued over.”  Maybe when the Senate Committee is done investigating the ‘stents controversy’ at St. Joseph Medical Center in Maryland, they can take a look at what’s going on in Tennessee!

Using this wonderful test – “I should only get sued for what I believe is malpractice” – I am pretty confident that  there won’t be much medical malpractice litigation concerning ER care in the state of Tennessee should this wonderful piece of legislation go through.

Perhaps I should also make you aware that there is also pending in the legislature of this state a cap on non-economic damages.   If you are wondering at what amount they want such damages capped – it’s $1,000,000.  Apparently, however, the lobbyists for the medical profession really would like to see such damages capped at $300,000 since they believe such a low figure would “take away the profit motive of trial lawyers.”

I wonder if this double-pronged legislative initiative isn’t a variant on the old shell game.  Throw enough legislation out there and negotiate to get at least one of them passed.

Tell you what – I won’t be moving our firm to Tennessee any time soon.