What’s the dam­age?

Ga. courts weigh in on mal­prac­tice awards

Modern Healthcare - - Regional News - Gregg Blesch

Hos­pi­tals and physi­cians in Ge­or­gia are cel­e­brat­ing a le­gal victory for tort re­form while looking ahead with some trep­i­da­tion to­ward an im­mi­nent de­ci­sion that will ei­ther up­hold or sink the noneco­nomic dam­age caps at the core of the 2005 med­i­cal mal­prac­tice law.

The Ge­or­gia Supreme Court up­held a pro­vi­sion last week that re­quires plain­tiffs to prove “gross neg­li­gence” to win a mal­prac­tice law­suit over emer­gency care. The law­suit at is­sue al­leged neg­li­gence on the part of 269-bed St. Fran­cis Hospi­tal in Colum­bus, the treat­ing physi­cian and the physi­cian’s prac­tice be­cause a CT scan wasn’t or­dered for a woman whose brain aneurysm was un­de­tected when she was brought to the hospi­tal’s emer­gency room by am­bu­lance in 2007.

Be­fore the case was tried, the plain­tiffs filed a chal­lenge to the con­sti­tu­tion­al­ity of the higher bur­den the law places on cases in­volv­ing emer­gency care. The ques­tion was ap­pealed to the Ge­or­gia Supreme Court, which up­held the law in a 4-3 de­ci­sion.

The ma­jor­ity re­jected ar­gu­ments that the law vi­o­lates the state con­sti­tu­tion’s “uni­for­mity clause” be­cause it cre­ates a higher li­a­bil­ity stan­dard for cer­tain providers, and that it de­prives pa­tients of their right to equal pro­tec­tion of the laws be­cause their ac­cess to a le­gal rem­edy is dif­fer­ent de­pend­ing on the set­ting in which they’re treated.

Mean­while, a state judge in At­lanta ruled in Fe­bru­ary 2009 that the law’s $350,000 caps on noneco­nomic dam­ages vi­o­late the state’s con­sti­tu­tion be­cause they usurp the judg- ment of a jury, which in this case awarded $1.15 mil­lion be­yond med­i­cal ex­penses. The de­ci­sion was ap­pealed to the Ge­or­gia Supreme Court, which heard oral ar­gu­ments last Septem­ber.

Be­cause the cases turn on dif­fer­ent le­gal grounds, the re­cent win doesn’t nec­es­sar­ily sig­nal that the higher court is likely to be sim­i­larly sym­pa­thetic in the caps case, in which a woman was left se­verely dis­fig­ured af­ter a cos­metic surgery pro­ce­dure on her face. “You’re deal­ing with dif­fer­ent facts and a very dif­fer­ent pro­vi­sion,” said Tem­ple Sell­ers, the Ge­or­gia Hospi­tal As­so­ci­a­tion’s gen­eral coun­sel and vice pres­i­dent for le­gal ser­vices.

The de­ci­sion did give providers some rea­son for op­ti­mism. Whereas the state judge who ruled against the caps ques­tioned the Leg­is­la­ture’s ba­sic determination that mal­prac­tice pre­mi­ums were cre­at­ing a cri­sis of health­care ac­cess, Ge­or­gia Supreme Court Pre­sid­ing Jus­tice Ge­orge Car­ley rec­og­nized that the emer­gency-care pro­vi­sion was a log­i­cal means of achiev­ing a le­git­i­mate goal. “If that anal­y­sis plays out in the caps con­text, I think we have a shot,” Sell­ers said.

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