Atlanta Injury Lawyer Blog

As a plaintiff's personal injury attorney who handles Georgia medical malpractice cases, it has always troubled me that Georgia hospital infection rates have never been accessible to the common consumer. Patients are left in the dark about which hospitals offer safe environments in terms of deadly infection rates. This may soon change. A new medicare database has recently issued an unprecedented study on hospital infection rates in Georgia that will finally shed light on this controversial healthcare topic.

Georgia currently has no laws requiring hospitals to disclose their infection rates to the public. Instead, the Department of Community Health (DCH) exclusively monitors infections and works with the CDCP to address any issues or causes for concern. This leaves the public completely ignorant and, therefore, incapable of making an informed decision about which hospital can offer the safest facilities.

I will never understand why restaurants are required to post their health inspection scores for all to see, but hospitals, where people entrust their own lives, have the luxury of withholding their uncleanliness and infection rates from the public. I think I speak for many when I say that having peace of mind before entering surgery is perhaps a little more important than having it before eating a sandwich at the local deli.

GHA and other defendants of the current system claim that hospitals must remain “cautious” about public reporting because an accurate method for comparison has yet to be developed. I’m not buying this at all. How difficult can it be to formulate a fair and balanced method for public disclosures? The 28 states that already require public disclosure of infection rates figured out a viable method. The State of Georgia should be able to as well.

Speaking of “fair,” Kevin Boyle, the spokesperson for the Georgia Hospital Association, was quoted in the Atlanta Journal-Constitution, stating, “More transparency is what the public wants, and we’re responsible to that.” “But the key is what report is right and fair to each of the stakeholders involved.” Are you kidding me? So let’s concentrate on what is fiscally fair to the “stakeholders” involved before we can even think about what is right for the patients? This is absurd. Georgia Government and its infection-ridden hospitals should be more concerned with disclosing vital information pertinent to the safety of their patient’s lives.

Proof of the current system’s flaws can be found in a new federal database at www.hospitalcompare.hhs.gov. Released by medicare, it provides the public with report rates of 2 types of infections and 6 other preventable conditions The study was conducted using billing records from medicare patients. This is the first and only source available for Georgians when it comes to infection rates in their hospitals. Georgia Watch, a consumer watch-dog in Georgia, has been hot on the issue of hospital-acquired infections for years now, with the rights of Georgia citizens to know at the forefront of their mission.

Not surprisingly, hospitals across Georgia have responded with vicious attacks of the study. Opponents assert that the study lacks scientific validity because it was based on imprecise and outdated billing information that fails to account for the varying conditions of each hospital’s patient population. The true reason for such widespread dissent, however, perhaps resulted from the embarrassing results.

Studies from the database show that most Atlanta hospitals had at least one case of potentially deadly catheter-related blood stream infection or “central line” infection. Bringing in the rear is Emory Hospital, which boasts the highest infection rate in the state and one of the highest in the nation. Typically, hospitals may report 1-3 central line infection cases per year. Emory had 36, earning 4th place for highest central line infection rates out of 3,300 hospitals nationwide.

These reports released by Medicare may not portray the most accurate depiction of the safety of our hospitals; however, as long as patients have no other alternate source of information, then it’s the only measurement that can be taken into consideration when trying to determine the safest hospitable. In the United States, an estimated 100,000 deaths per year are attributable to these types of infections. That’s more than breast cancer. Hospitals and lawmakers across the State of Georgia should use this as a wake-up call and an opportunity to minimize preventable deaths by finding solutions to this infectious epidemic. Georgia citizens deserve better.

Sources:

http://www.ajc.com/health/when-the-treatment-makes-974175.html

http://www.ajc.com/news/georgians-kept-in-dark-975123.html

http://www.hospitalcompare.hhs.gov/

It is with great pride and joy that I announce that the Georgia Supreme Court today held caps on non-economic damages in medical malpractice cases unconstitutional as a violation of a citizen's 7th Amendment right to a jury trial. The ruling was in Atlanta Oculoplastic Surgery, P.C. v. Nestlehutt, published today. The Georgia Supreme Court held unequivocally that nothing trumps a person's 7th Amendment right to a jury trial, including the Legislature's attempt to cap damages.

This is a great victory for Everyday Georgians who have been or may become the victim of medical malpractice or medical carelessness. Contrary to the Medical Association of Georgia's spin on this, the caps law did NOT decrease doctors' medical malpractice premiums. In the three years between 2002-2005, malpractice premiums increased 150%. In the five years since the caps law was enacted, premiums have gone down only 7%, hardly the panacea physicians were looking for and hardly the cure-all that MAG claims it was.

So Everyday Georgians can rest easy tonight knowing the Georgia Supreme Court would not stand idly by and allow their rights to be trampeled. Many thanks to the Nestlehutts, who showed remarkable courage through this ordeal, and to their attorneys, Adam Malone and Mike Terry.

The Supreme Court of Georgia will soon rule on this issue, i.e., whether the Georgia Legislature's imposition of an arbitrary cap of $350,000.00 on damages in medical malpractice cases violates the 7th Amendment Right to a Jury Trial under the United States and Georgia Constitutions. The case pending before the Georgia Supreme Court right now on this issue is Nestlehutt v. Atlanta Oculoplastic Surgery, P.C., d/b/a Oculus. I have filed an Amicus Brief with the Georgia Supreme Court in support of Mrs. Nestlehutt and in support of the position that such arbitrary caps on damages do, indeed, violate your 7th Amendment right to a jury trial. The Nestlehutt case involved cosmetic surgery that disfigured Mrs. Nestlehutt permanently. A Fulton County, Georgia jury, who heard all the facts and considered all the evidence in the case, returned a verdict for Mrs. Nestlehutt and her husband in the amount of $1.2 Million. Under the caps law, this would have been written down to $350,000.00; however, the trial judge found the caps law to be unconstitutional. And so, Oculus appealed that outcome to the Georgia Supreme Court.

Other media have referred to this case simply as a "botched facelift" case. This does not, however, adequately portray the injury Mrs. Nestlehutt sustained and the horrible pain and suffering she has endured since that careless surgery. Below is a video that shows the after-surgery photographs of Mrs. Nestlehutt so that NO GEORGIAN thinks this is simply a "botched facelift" where the patient simply doesn't think she looks as good afterward as she should. It was a horriffic injury and after watching the video below, I think you will agree that the original jury's award of $1.2 Million was proper. Thanks to her attorney, Adam Malone, for sharing this powerful video with me. I want all Georgians to watch it. Thanks to Mrs. Nestlehutt in having the courage to share it and the courage to fight this battle.

WE THE PEOPLE from Georgia Justice on Vimeo.

How many hoops should you have to jump through to get justice? It's a fair question that many people struggle with. Recently, the CEO of a Georgia medical services company suggested in a guest column in the Atlanta Journal and Consitution on Friday, January 8, 2010, that to be really sure that Georgians who have been harmed by negligent medical care are worthy of justice we should subject them to one more hoop. Not coincidentally, it's a hoop that benefits only medical professionals and insurance companies – the only two interest groups that profit when injured patients are prevented from securing justice. What this CEO has proposed is that, instead of allowing victims of medical malpractice the same Constitutional Right to Trial by Jury enjoyed by all other Georgians, people harmed by medical malpractice would have to get permission to have a jury trial from a “screening panel” comprised of members of the medical and insurance industries, the same entities that want to avoid compensating injured patients. This approach is wrong and adds an unnecessary, ineffective layer to our civil justice system. The fact is all medical malpractice cases brought in Georgia have already been through multiple screening hoops. The first hoop is that you have to have had something very bad happen as a result of malpractice. Your next hoop is that you have to find a lawyer willing and able to take your case. That lawyer will tell you that there is another, special hoop that protects only professionals charged with negligence. In order to pass through that hoop, the patient must find a medical professional willing to publicly criticize their colleague and sign a document swearing that malpractice happened. So far your case has been screened three times: Something bad happens. You find a lawyer who will invest in helping you find justice. And, you find another doctor who agrees that there was malpractice and is willing to say so. Then there’s a fourth screening before you can have a jury hear your case: the judge must screen the case, too. Our Founding Fathers created the world's best independent screening panels when they imbedded the right to a trial by jury in our Constitution. You are entitled to a jury of your peers, not a two step process, the first of which is a trial by jury of the defendant's colleagues. We trust the people of our communities to fairly resolve our disputes when we are unable to resolve them ourselves. The CEO cites an approach tried in Maine as being the right fit for us here in Georgia. He fails to mention that this approach is regularly criticized by the Supreme Court of Maine as being inadequate and harmful to the people of Maine. He cites, as a reason for needing “screening panels,” a Georgia case involving a plastic surgeon who carelessly destroyed the blood supply to a woman’s face and left her horribly disfigured. He suggests that this woman – who was horribly injured through no fault of her own and who successfully navigated all of the legal hurdles to hold the wrongdoer accountable for herself and other patients – has not done enough. He says she needs to clear yet another hurdle to prove herself worthy of a jury trial. The suggestion is outrageous and it serves no purpose but to deny those who have been harmed their fair measure of justice. Why should patients who have been harmed by medical malpractice have to go through two trials when everyone else only has to go through one? Why should medical professionals get special treatment? It's a question with an obvious answer: They shouldn't.

Tomorrow, the Supreme Court of Georgia, the highest appellate court in the State of Georgia, will hear oral arguments in what may prove to be one of the most significant cases to come before the Court in a hundred years. It is the case of Atlanta Oculoplastic Surgery v. Nestlehutt, which challenges the provisions of Senate Bill 3, passed in 2005 by the Georgia General Assembly, that caps noneconomic damages that a jury may award to a victim of medical malpractice at $350,000.00. This means that if your spouse, who doesn't work outside the home, or your child who has no earnings history, is killed by medical malpractice, the absolute most you could recover for your loved one's death is a mere $350,000.00. This is absurd on so many levels. In the Nestlehutt case, a Fulton County, Georgia jury awarded Mrs. Nestlehutt well over $350,000.00 for permament injuries she received to her body due to medical malpractice by her physicians. After a trial, the Fulton County jury found Mrs. Nestlehutt's case to be meritorious and awarded her substantially more than the $350,000.00 cap. When judgment was about to be entered, however, the Fulton County trial court judge ruled that the cap of $350,000.00 found in SB3 was unconstitutional, for many reasons.

The Defendant appealed directly to the Supreme Court of Georgia, which will hear arguments tomorrow at 10:00 a.m. I have personally filed an Amicus Brief (a Friend of the Court Brief) on behalf of the many clients I represent in medical malpractice cases who have had the value of their claims unnecessarily reduced by the arbitrary caps on damages. Numerous briefs have been filed. There is no question in my mind that the caps on damages law violates a Georgia citizen's absolute right to a trial by jury. Limiting what a jury says is fair and just, given all of the harms caused by a defendant's malpractice, is tantamount to taking away a person's right to a jury trial to decide those issues in the first place. A wronged Georgia citizen can not realize the full benefit of his or her Seventh Amendment right to a jury trial if it is limited in any way.
Also, the caps on damages limits access to justice for many. Many people who have valid medical malpractice claims but in which the only damages are noneconomic, so they are limited by the $350,000.00 cap, cannot bring any lawsuit on behalf of a loved one because they have no realistic hope of recovering enough to justify an attorney's handling of the case. Although Georgia law allows a person to bring a case pro se, or without a lawyer, realistically, that would never work in the medical malpractice arena. There are too many special requirements for the filing and proving of a medical malpractice case. In reality, a pro se plaintiff would stand no chance. That is the beauty of a contingency fee. It allows a victim to pursue justice and when the stakes are high enough, the high cost of a medical malpractice case (many take anywhere from $75,000.00-$200,000.00 to bring and proscecute) can be justified. Otherwise, it can't.

What will the Georgia Supreme Court do? The right thing, I hope. I hope and pray that the Court will strike down caps on damages as being unconstitutional so as to ensure every Georgian has a real avenue to seek justice in the Georgia Civil Justice System when wronged by medical malpractice. This is one I will, obviously, keep a close eye on and will keep you posted.

GTLA (Georgia Trial Lawyers Association) has issued this press release on the case.
Supreme Court to Hear Oral Arguments on Caps on Damages
Statute is challenged after a medical malpractice victim’s face literally falls off after surgery

Atlanta, GA-- On Tuesday, September 15, 2009, the Georgia Supreme Court will hear oral arguments regarding the constitutionality of the provision that caps the amount of damages a victim of medical malpractice can secure from a jury. The plaintiffs in the case of Betty Nestlehutt and Bruce Nestlehutt v. Atlanta Oculoplastic Surgery, P.C., will argue that the Georgia Supreme Court should uphold the trial court judge’s finding that O.C.G.A. § 51-13-1, as enacted in 2005, is unconstitutional.

The case arose from a medical malpractice claim filed by Adam Malone and Frank Ilardi on behalf of their clients Betty Nestlehutt and her husband Bruce Nestlehutt in the Fulton County State Court in October of 2008. Married for over 50 years, the Nestlehutts raised two children and they shared a real estate business. Bruce handled the behind-the-scenes work, and Betty, a people-person by nature, focused on client and public interaction. Competition was tough and as Betty aged she found that more and more clients seemed to prefer younger agents. So, at seventy-one years of age, Betty Nestlehutt, after much thought and consideration, sought consultation with Dr. Harvey P. Cole of Atlanta Oculoplastic Surgery, P.C. concerning bags under her eyes and lines around her mouth. Dr. Cole recommended she undergo several surgical procedures including a simultaneous CO2 laser resurfacing and full facelift.

Having both the CO2 laser resurfacing and full facelift done together is well-known by practicing cosmetic surgeons to be risky, as the chance of damaging the facial blood supply is greatly increased on a patient of Betty’s age and complexion. However, based on her doctor’s recommendation, Betty went through the combination of procedures and the blood supply to her face was, in fact, severely damaged.

After the surgery, the skin on Betty’s face struggled to live without its usual blood supply and after a 3-week period, died completely, leaving the once fair-skinned wife and mother with huge, gaping wounds from her temple to her jaw line, covering both sides of her face and over both of her cheeks to her chin. Betty Nestlehutt’s face, quite literally, fell off.

“Betty Nestlehutt was the face of her real estate business,” said Malone. “Her face was so horrifically disfigured that she was no longer able to even leave her house. Photographs of her disfigurement are even too gruesome for public distribution. The damage is permanent. Years later she has to wear layers of special makeup to try to give the appearance of normalcy.”

After hearing the testimony and considering all of the evidence, a jury of 12 returned with a verdict in the Nestlehutts’ favor which included a recovery of money damages for her past and future medical expenses, for damage to her relationship with her husband and $900,000 in “non-economic” damages for the devastation of her quality of life. The verdict exceeded the $350,000 cap on noneconomic damages enacted as part of SB 3 in 2005. Judge Diane Bessen declared unconstitutional the statute capping a jury’s verdict and now her decision, upon the defendant’s appeal, is before the Supreme Court.

“Judge Bessen’s order appropriately concluded that a one-size fits all predetermined cap on damages violates several protections guaranteed by the Georgia Constitution,” said Malone. “Her order balances the rights of all Georgians, young and old, rich and poor, and restores the guarantees set forth by our Constitution that were stripped away in 2005.”

Judge Bessen’s order declares the caps on damages provision unconstitutional because it violates three basic constitutional tenets: the right to trial by jury, the separation of powers doctrine and equal protection of the laws.

Under SB 3, the jury’s deliberation regarding the amount of damages to be awarded is preempted by a legislatively imposed cap—no matter how severe or catastrophic the case before them. Historically, a jury had the ability to decide the fate of its peers constrained only by the particular facts of an individual’s case, as the Founding Fathers intended. Thomas Jefferson once said, “I consider trial by jury as the only anchor yet imagined by man, by which a government can be held to the principles of its Constitution.”

In her order, Judge Bessen wrote:

A limit or cap on noneconomic damages, however, invades the right to a jury trial by usurping one of the fact-finding responsibilities of the jury. If the amount of noneconomic damages awarded by the jury exceeds the statutory cap, this Code section automatically and arbitrarily reduces the verdict, without consideration of the evidence, the record, or any other fact produced at trial and found by the jury. The limitations imposed by O.C.G.A. 51-13-1 render the right of the jury to assess damages meaningless… The cap so interferes with the determination of the jury that it renders the right of a jury trial wholly unavailable.

Additionally, Judge Bessen also found that the cap on damages violates the Separation of Powers Doctrine contained in the Georgia Constitution. Three other states’ supreme courts, with similar constitutional provisions, also have struck down caps on damages on this basis. The Georgia Constitution states that: “The legislative, judicial and executive powers shall forever remain separate and distinct, and no person discharging the duties of one, shall, at the same time, exercise the functions of either of the others.” One distinct function of the judicial branch is that judges have the exclusive right to award to a party a “remittitur” – or a new trial – if a judge finds that a verdict is either excessive or inadequate. Judge Bessen’s order declares the cap on damages statute to be a “legislative remittitur” and that the legislature has unconstitutionally invaded the exclusive role of the judiciary to find facts and control judgments.

“Equally important,” the judge writes, “it does so without the option of a new trial for the injured plaintiff. As such, it unduly encroaches upon the judiciary’s constitutional right and prerogative to determine whether a jury’s assessment of damages is either too excessive or too inadequate within the meaning of the law.”

The third violation of the Constitution Judge Bessen found was that a cap on damages violates the Equal Protection provisions of the Georgia Constitution which state: “No persons shall be denied the equal protection of the laws.” To examine this violation, Judge Bessen explored whether there was a “rational relationship” between the government’s purpose and its enacted statute which treats similar parties in very different, unequal ways.

The rational relationship test basically states that a statute may be valid as long as it has a rational relationship to a governmental purpose. In the case of SB 3, the government’s stated purpose was to “promote predictability and improvement in the provision of quality health care services and the resolution of healthcare claims..., assist in promoting the provision of healthcare liability insurance by insurance providers…, [and addressed concerns about] medical providers and facilities leaving the state and the cost of malpractice awards.” For a law to be valid, a rational relationship to those goals must be proven. Judge Bessen found that the cap on damages failed the rational relationship test completely.

In holding the cap on damages provision unconstitutional, Judge Bessen wrote:

After review, this Court finds that there is no rational relationship between statute and the expressed government interest. Most obviously, it is a complete contradiction to state that the overall quality of healthcare would be improved by shielding negligent healthcare providers from liability. In fact, as recognized by other courts, a cap on noneconomic damages actually diminishes tort liability for healthcare providers and diminishes the deterrent effect of tort law… There is absolutely no evidence that these objectives are achieved by imposing a financial burden on the most victimized of plaintiffs… Based on current statistics, limiting noneconomic damage caps is not rationally related to the state purpose of reducing medical malpractice insurance rates… it appears that this statute was enacted arbitrarily, based upon speculation and conjecture rather than empirical data.

Finally, Judge Bessen found that the cap on damages violates Equal Protection because it creates different classes of victims—those injured by healthcare providers and those injured by others and those who are catastrophically injured and those who are less severely injured. Judge Bessen penned, “The cap’s greatest impact falls on those who are most severely injured, and creates classes of fully compensated victims and those only partially compensated… Similarly, the noneconomic damages cap discriminates against low-income individuals who are unable to prove large economic damages but nonetheless may sustain large noneconomic damages.”

The President of the Georgia Trial Lawyers Association, Chris Clark, has been following this case closely.

“As a trial lawyer, I represent the person, who, through no fault of their own, has been injured—sometimes severely. They miss work, accrue medical bills and—often most important to them—they suffer a loss of the quality of life that they once had,” said Clark. “Betty Nestlehutt’s severe disfigurement – which she had no part in creating – has diminished her quality of life and, in turn her husband’s and her family’s. Judge Bessen’s order was fair, upheld our Constitution, and reflected the rule of law that has stood firm since the inception of this nation.”

The argument on Tuesday was prepared by Malone and attorneys Darren Summerville of Bird Law Group, P.C. and Michael Terry of Bondurant, Mixson & Elmore, LLP. AARP, Voices for Georgia’s Children, Georgia Women for a Change and Georgia Watch all filed Amicus Briefs in support of Betty and Bruce Nestlehutt.

###

The Georgia Trial Lawyers Association
Protecting the Constitutional Promise of Justice for all by
Guaranteeing the Right to Trial by Jury,
Preserving an Independent Judiciary, and
Providing Access to the Courts for all Georgians

www.gtla.org

A Fulton County, Atlanta, Georgia jury has just returned this afternoon a verdict in the amount of $2.3 Million in a medical malpractice case involving a botched circumcision. The trial on March 16, 2009, and the jury deliberated from 10:30 a.m. yesterday until about 1:45 p.m. today, when they returned a verdict in the amount of $1.8 million for the minor child, and $500,000.00 for the mother.

The case involved an alleged botched circumcision, in which the young male child involved (who was 2-days old at the time of the incident), had about five millimeters (or about one-third) of his glans penis negligently removed during a circumcision procedure on November 6, 2004. This is obviously a significant permanent injury that will go with the child the rest of his life.

Defendants not only contended they had committed no negligence, and that any injury was an accepted risk of the procedure, but also somewhat surprisingly contended that the incident did not even occur, asserting that the child was suffering from a congenital deformity of the penis. I guess the jury just didn't buy that argument. There are some detractors of the Georgia Civil Justice System who might decry this verdict as excessive, but my guess is those who do have 100% of their penis. Bless this Fulton County jury for taking into the consideration the emotion toil this unnecessary deformity will have on this child as he grows into a young man...something he will have to live with every day of his life, all due through no fault of his own.

The Federal Centers for Medicare and Medicaid Management have just released a startling study of death rates in our nations' hospitals and Georgia hospitals didn't fare so well. Nine Georgia hospitals rated worse than national norms on death rates for pneumonia or heart failure — a higher number than all states but California. The Atlanta Journal and Constitution this morning published a telling chart showing the dismal performance of our Georgia Hospitals. The good news for Georgia citizens is that now, when you may have a choice, you can access this study to help you make a better-informed decision about in which hospital you should have a medical procedure performed. You may access the hospital ratings here. As medical consumers, it’s the first time consumers are able to compare hospital death rates for patients admitted for three conditions: pneumonia, heart failure and heart attack.

This is a step in the right direction, but more needs to be done. Hopefully, one day we Georgians might be able to have available a hospital's infection rate, which is a secret many Georgia hospitals have been hiding for years. These are numbers the individual hospitals have and know, but don't discose to the public. It's obvious to anyone paying attention that hospitals are worried about having to disclose infection rates, because the number would be terrifying to the general public. But if Georgia Consumers want real power in making decision about which Georgia hospitals to go to, we need to know a hospital's infection rates.

I am pleased to report in the verdict department of a verdict yesterday in DeKalb County, Georgia of $4.7 Million in a medical malpractice case. No doubt the families of the victim had to wait years to realize this full dose of justice. Congratulations to Plaintiff's counsel Bill Ballard and Greg Feagle of Atlanta. Defense counsel was Jack Slover, of Hall Booth Smith & Slover, also of Atlanta. The Hall Booth firm has done the bidding of Medical Association of Georgia Mutual Insurance Company for years. The verdict restores one's faith in juries in general, and in DeKalb County juries specifically.

A Gwinnett County, Georgia jury has awarded $5 million in damages to the family of a new mother who drowned in a bathtub at Gwinnett Medical Center. An expectant mother, hospitalized with preeclampsia, drowned in a hospital shower after being told she was OK to shower without anyone there to check on her. This was a retrial of the case. The first trial ended in a hung jury. During this second trial, however, the jury, apparently, found that the Gwinnett Hospital nurses violated hospital policies and procedures regarding assessing a patient's condition, determining fall risk, showering unassisted, etc.

During the second trial it was discovered that the hospital had been hiding several relevant policies and procedures that had never been produced in the first trial, but should have been under Georgia discovery rules. In addition, there were surveillance cameras that would have established when or if the nurse went into the room and it was discovered that the tapes had been altered. There was a missing thirty minute section of the tape where two cameras that corresponded to the crucial time period suddenly went dark. Fortunately, this attempted subversion of the Civil Justice System did not prevail and the jury delivered a verdict that spoke the truth about the value of a 34 year old mother who, obviously, shouldn't have died while in the hands of the very professionals who had vowed to take care of her. My thoughts are with her family today so that they may take some relief that the jury system worked for them.

On April 9, 2008 I tried a bench trial and secured a $2.5 million verdict in DeKalb County, Georgia State Court on behalf of my clients for the loss of their unborn child due to medical malpractice. The trial was at the DeKalb County Courthouse in Decatur, Georgia. This was a tragedy to my clients that, as with all medical malpractice cases, never should have happened. The case involved a claim for the wrongful death of a 14-16 week old fetus.
The medical malpractice action arose when a doctor failed to see the fetus on
sonograms. The obstetrician told my client he could not see a fetus in her womb on ultrasound and recommended she undergo a procedure to remove any "byproducts of conception." He then conducted a defective D & C and prescribed a medicine, Methotrexate, (which is essentially chemotherapy)
to make sure any "conception" was killed. After the D & C, my client returned home where
she gave birth to a fairly well formed, but now dead, fetus. I secured the cooperation and testimony of the subsequent treating obstetrician who testified that the
fetus was absolutely fine and would have developed properly.

The trial was brief. The DeKalb County State Court judge heard the evidence, took a 15 minute recess, and returned with a verdict of $2.5 million.

My clients will never get their child back (who, by the way, would be about two years old right now and delighting the family in everything he did), but at least the verdict might give them some small sense of justice.

It's not news that doctors protect their own, although that fact is now proven. In a recent study, 46 percent of physicians surveyed admitted they knew of a serious medical error that had been made but did not tell authorities about it. This in spite of the fact that in 2000, the U.S. Institute of Medicine reported that up to 98,000 people die every year because of medical errors in hospitals alone.

There is probably plenty of blame to go around for this phenomenon: inadequate State Medical Boards, hospitals that profit off of physicians, and an attitude of many physicians that they simply should not be held accountable for their errors, because, they are, after all, doctors. Let's hope the Georgia Composite State Board of Medical Examiners, the Board that oversees all physicians licensed here in Georgia, does a better job of cleaning their own house. Plaintiffs' trial lawyers who handle medical malpractice cases here in Georgia, as I do, will do everything we can to hold negligent physicians accountable in a civil court of law, as long as the Georgia Legislature stops limiting a Georgia citizen's access to the courts and, thereby, to justice.

It is hard to believe this actually happened, I know, but in a Rhode Island hospital, there have been three botched brain surgeries in the last ten months in which the physician operated on the wrong side of the brain! In two cases, the doctors did not realize the errors until after they had opened the skull. This is not just rotten luck: this is evidence of a significant systems failure in that hospital.

We, as Georgia citizens, can only hope we would be better served by our hospitals and our physicians, and that the Georgia Composite State Board of Medical Examiners would be more diligent in weeding out incompetent doctors. We place our lives and the lives of our loved ones in the hands of these physicians and we expect some minimum level of competence, which clearly is absent if the physician operates on the wrong side of the body.

I am very pleased to announce a $10 Million verdict by a Bibb County jury for a woman who was made severely ill by a laparotomy pad (sponge) left in her stomach by her doctors during surgery. Although the sponge left by the doctors was discovered in her stomach about a week after it was negligently left there, it had already poisoned the unfortunate woman so severely that it caused kidney damage and blindness.She also suffered severe memory loss and depression. The verdict was against the hospital due to the failure by the hospital's nurses to keep an accurate sponge count during and after the surgery. The injured woman had approximately $800,000.00 in medical bills to treat all of the new medical problems caused by the sponge that was not supposed to have been left in her body.

Georgia citizens take heart! So often insurance carriers play the "conservative county" card in trying to lowball plaintiffs in settlement negotiations, and Bibb County is certainly perceived as a "conservative county." I think what this means is that the good people of Bibb County know real medical malpractice and a real tragedy when they see one and will gladly give appropriate financial relief to balance the harm that is often done by rampant medical malpractice. The Bibb County jury rendered justice as they saw fit,and their verdict is nothing short of an affirmation of the jury system, so preciously protected by the 7th Amendment to the Constitution.

We can only hope so.

An Illinois Circuit Court yesterday held the cap on damages in Illinois to be unconstitutional. This took great courage by the Illinois Circuit Judge to call a spade a spade and she did just that, without regard for the inevitable political consequences her decision may have.

In the Illinois case, the ruling came in the case of Abigaile LeBron, whose family last December sued Gottlieb Memorial Hospital in Melrose Park and Dr. Roberto Levi-D'Ancona for not acting quickly enough when Abigaile's mother began showing problems during her October 2005 birth. Abigaile was left with severe brain damage and other developmental problems. With such severe brain damage, there is no question that it will take millions of dollars to raise this child and to provide appropriate medical care for the rest of her life.

The Illinois cap on noneconomic damages is even more generous than the Georgia cap: in Illinois, the plaintiff's recovery is limited to $500,000.00 against the physician and to $1 million against the hospital. Unfortunately, for Georgia citizens, our recovery here in Georgia in medical malpractice cases is limited to $350,000.00, a ridiculous, arbitrary amount assigned by the Georgia Legislature. Like Georgia's law, the Illinois law went into effect in 2005. Georgia Trial Lawyers Association is looking right now for the appropriate case to challenge the constitutionality of the damages cap. Because a verdict above $350,000.00 may be necessary to be able to challenge it, it may be awhile before a case here in Georgia is ripe to take to the Georgia Supreme Court. Georgia citizens can only hope and pray that when that appropriate case finds its way there, the Georgia Supreme Court Justices will show as much courage and guts as did the Illinois Circuit Court judge did in finding that cap unconstitutional and that our Justices will also disregard any potential political ramifications of their all important decision. The Citizens of Georgia deserve at least this from the Georgia Supreme Court.

The answer is probably yes.
Georgia hospitals, along with most other hospitals in the United States, most likely discriminate against the uninsured, or those patients insured through either Medicare or Medicaid. A new study regarding patients with appendicitis certainly seems to prove the theory. This study, appearing last month in The Journal of the American College of Surgeons, used state data from 2003 and 2004 in New York and included 26,637 appendicitis patients, of whom 7,969 had a ruptured appendix. There were no significant differences in the likelihood of perforation among whites, African-Americans, Hispanics and Asians. Compared with patients who had private insurance coverage, those on Medicare were 14 percent more likely to have a burst appendix, people on Medicaid were 22 percent more likely, and those with no insurance at all were 18 percent more likely to have a rupture.

This is obviously not a very kind commentary on our nation's hospitals. Once again, it is a tell of the haves and the have-nots, as Senator John Edwards often puts it, because those who "have" private insurance get proper medical care for appendicitis well before the appendix becomes so diseased and inflamed that it ruptures and then must be removed on an emergency basis. Those who do "not have" private insurance get ignored with complaints of abdominal pain until the appendix ruptures, leading to emergency surgery, and, ironically, potentially higher medical costs.

I have strongly suspected Georgia hospitals discriminate in favor of those lucky patients who have their own private health insurance, ever since I tried an obstetrical malpractice case in Gainesville, Hall County, Georgia, where the hospital emergency department literally ignored a pregnant woman bleeding in the ER chairs. That unfortunate woman was on Medicaid. I believe had she had private insurance, instead of Medicaid, the nurses would not have left her in the ER bleeding so long until her baby had to be delivered by emergency C section and only then suffering from extreme hypoxia, or oxygen deprivation. The child later died. This new study seems to suggest I was right.

It also is not a very kind commentary on our society if we are allowing hospitals to get away with this discriminatory treatment. Are the hospitals saying only the well-off patients who can afford their own private insurance get our very best medical care? I hope in our supposedly civilized society this isn't true; otherwise, God help us.

Put another one in the "win" column for the good guys. As Immediate Past President of Georgia Trial Lawyers Association ("GTLA"), I am proud to announce that GTLA's Constitutional Challenge Committee, chaired by Lyle Warshauer and Matt Nasrallah, won another round in the ongoing effort to restore Georgian's rights by eliminating the horrible law now infamously known as "SB3." The particular provision that the Georgia Supreme Court ruled unconstitutional this time is 9-11-9.2, which required a plaintiff to file an all-encompassing medical authorization with the plaintiff's complaint in any medical malpractice action. the Supreme Court held O.C.G.A. § 9-11-9.2 is preempted by the federal privacy provisions of the Health Insurance Portability and Accountability Act of 1996, or HIPAA. To read the full article, click here.

Zachary H. Thomas of Savage, Turner, Pinson & Karsman in Savannah, another proud GTLA member, represented the winning appellees. GLTA filed an Amicus Brief in the Supreme Court arguing in favor of holding the provision unconstitutional, not only on the basis of Federal Preemption, but also because it was a roadblock to any plaintiff's ability to file a medical malpractice action.

I congratulate the GTLA Constitutional Challenge Committee and Zach Thomas for this wonderful win on behalf of Georgia citizens. We are slowly but steadily dismantling the horrendous SB3 and restoring the rights to due process to Georgia citizens, and I am proud of it.

I have had several occasions to observe personally that U.S. hospitals, including those right here in Fulton County, Georgia, charge uninsured patients more than insured patients, and, therefore, are discriminating against the uninsured every day. This has become obvious to me simply by comparing my case files in which my client is insured with health insurance versus my case files in which my client is not insured. The contrast is stark and leads me to conclude that U.S. hospitals discriminate against the uninsured by charging them more for the exact same medical services and products than they do insured patients.
Now there is absolute proof of this. Amazingly, it comes from one of their own, Gerard Anderson, Director of the Center for Hospital Finance and Management at Johns Hopkins University's school of public health, the author of the study which was published May-June issue of the journal Health Affairs. The study showed that in 2004, the most recent year for which data was available, hospital patients without health insurance and others who pay for medical care out of their own pockets were charged an average 2.57 times more than those with health insurance. Hospitals in the United States have come under fire from patient groups and lawmakers for marking up prices for those lacking the negotiating clout of a health insurer. But the price discrepancies are steadily worsening despite some reform efforts, the article said.

"The mark-up on hospital care for these individuals, especially for those who can afford it least, is unjustifiable," said Anderson. More than 60 class-action lawsuits have been filed against U.S. hospitals over the issue. Anderson has been an adviser on some of them. About a year ago, the American Hospital Association enacted a voluntary policy for poor and uninsured patients.

But that policy has yet to show an impact and it is unclear how many hospitals are abiding by the price suggestions, Anderson said.

Anderson recommends pursing the ongoing class-action lawsuits and having the government set a maximum amount that hospitals can charge as prescriptions to remedy the problem.

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