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.)
(Cross-posted on PointofLaw.com)
The SEC has issued
interpretive guidance on climate change and environmental regulation. The guidance is dense, as SEC guidance usually is, but it begs the
question of why the SEC chose to come out with guidance now.
Certainly companies with environmental exposure will
need to disclose environmental risk in their 1934 Act risk factor disclosures and, to the extent the EPA gets into the act
by trying to regulate carbon dioxide emissions, that regulatory risk will become a risk factor as well. But given the
great uncertainty surrounding climate change and the uncertainty surrounding current liability (as expressed in private suits)
and future liability (as contemplated by potential regulations) how much sense does it make to give guidance on risk factor
disclosures on such certainties?
Doesn't the multiplication of uncertain science, uncertain liability and
uncertain regulation just equate to more uncertainty?
