Thursday, August 7, 2008

Georgia judge rejects NED caps as unconstitutional

Judge rejects damages limit for malpractice

From the Atlanta Journal-Constitution
May 2, 2008

A Fulton County judge has struck down the cap on monetary awards in a medical malpractice case, a decision that, if upheld on appeal, could undercut a major component of Georgia's tort reform laws.

Superior Court Judge Marvin Arrington wrote in an order released Wednesday that the legislative cap of $350,000 for noneconomic damages such as pain and suffering was unconstitutional because it gave special protections to the medical profession. This meant people injured by doctors had less protection than those injured by, say, a manufacturer's product.

"It is absurd to say that if you get injured by a product that the jury can decide your noneconomic damages, but if you get injured by medical malpractice, it can't," said Trent Speckhals, one of the lawyers for Cheon Park, the plaintiff in the case.

Mr. Park, a 60-year-old retired restaurant owner, fell from a ladder in 2006 while trimming trees at his home near Douglasville and was taken by ambulance to the WellStar Douglas Hospital. He and his wife, Lynne, are suing the hospital and two doctors because he claims they missed injuries to his neck and spine that resulted in him becoming a quadriplegic.

The case has not gone to trial, and Judge Arrington's decision does not apply to other cases.

But if the defendants appeal, it will give the Georgia Supreme Court a chance to overturn the caps in malpractice cases.

The Georgia Legislature approved the $350,000 cap in 2005 as part of a civil justice tort-reform law over the opposition of the Georgia Trial Lawyers Association and consumer groups. Physicians and hospitals said the law was necessary in order to hold down malpractice insurance premiums.

In reaction to Judge Arrington's ruling, the Medical Association of Georgia said tort reform had made physicians' services such as obstetrical and general surgery more accessible because of reduced insurance premiums.

"The year before we passed the law, we lost 10 percent of the doctors delivering babies in the state," said David Cook, the medical association's executive director.

In 2006, the Georgia Supreme Court struck down another provision of tort reform when it ruled that defendants could not decide the county in which their medical malpractice case would be tried.

In his written opinion, Judge Arrington said limiting the caps meant that in many cases large jury awards would only be issued to people who could point to the loss of large incomes.

"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," Judge Arrington said. "The disabled manager of a hedge fund, a corporate CEO, an entertainer or such other person whose income is in the tens of millions of dollars has a claim under Georgia law that would dwarf the amount awarded in any case for pain and suffering."

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